Service agreements and Dienstverträge

In his entry Kein Dienstvertrag mit Microsoft, Ingmar recently commented on the translation into German of a Microsoft licence agreement.

Microsoft original English
Microsoft German translation

This is a contract between you and Microsoft for use of the Microsoft .NET Messenger Service. We are Microsoft Corporation (located at One Microsoft Way, Redmond, WA 98052-6399) or, based on where you live, a Microsoft affiliate. We will refer to ourselves in this contract as either “Microsoft”, “we” or “our.” You are an individual person.

Dies ist ein Vertrag zwischen Ihnen und Microsoft hinsichtlich der Nutzung des Microsoft .NET Messenger Services. Wir sind die Microsoft Corporation (Adresse: One Microsoft Way, Redmond, WA 98052-6399, USA) oder, je nachdem, wo Sie wohnen, ein verbundenes Unternehmen von Microsoft. Wir bezeichnen uns in diesem Vertrag entweder als “Microsoft”, “wir” oder “uns“. Sie sind eine Einzelperson.

Now obviously Ingmar was aware he didn’t have an employment contract with Microsoft. For one thing, he wasn’t getting any salary, and on top of that they seemed to be excluding so many things that they didn’t sound like an ideal employer.

However, their translator isn’t alone in his difficulties. Here’s a brief and not very academic summary of the problems:

In English law there is a distinction between a contract of service and a contract for services. This is pretty confusing in itself, and there’s an argument for just not using the terms at all. But since they exist, here’s the lowdown:

Contract of service: a contract of employment. The employee may be employed, say, for 40 hours a week, and the employer can to a large extent decide where the employee works and at what times. Employment law used to be called master and servant law. You could call this an Arbeitsvertrag

Contract for services: a contract with an independent contractor, for example with a translator.

In more recent times, the term Service agreement or Service contract has begun to be used to mean something like Wartungsvertrag. The meaning would be expected by a non-lawyer, but it doesn’t exactly help having a third entity here. Whenever you have to translate something headed Contract for Services, work out what it is before you start.

Now in German law, this distinction between employee and independent contractor is perfectly familiar, but the contract titles don’t follow it. We have:

Dienstvertrag: contract to perform an activity, for instance to work for 40 (or fewer) hours per week. Arbeitsvertrag (contract of employment) is a subcategory.

Werkvertrag: contract to produce a result, for example to make a photograph.

This is a bit peculiar to my mind, as you could have a Dienstvertrag to bake pizzas for three hours, or a Werkvertrag to produce a certain number of pizzas, and the two would be different legal arrangements. And for instance, if you pay a gardener to mow the lawn for two hours, it is a Dienstvertrag, because it’s measured in hours.

It isn’t always easy to draw the line between the two contracts, and there are mixed contracts, but that’s going too far for my purposes here.

So we have two dichotomies, one in English and one in German, and they are not the same. You cannot go around translating Dienstvertrag as contract of service and Werkvertrag as contract for services. Nor can you say, if a gardener I pay for two hours’ work a week has a Dienstvertrag in German, that because he has a contract for services in English, you will translate it that way. We have two different legal systems with two different distinctions.

And for years I used to find that students found this all too much and when they were confronted with the German terms they just applied the English terms because they wanted them to be right. Not that I imagine that Microsoft translator was one of mine.

By the way, under German law translators usually have a Werkvertrag and interpreters a Dienstvertrag – that is if they’re freelances. In England, they would both have a contract for services.

12 thoughts on “Service agreements and Dienstverträge

  1. This seems to hinge on the translation of “service” in the computer sense — including, indeed, purely technical services the computer performs. And “Dienst” has taken roots for that one, no way around it. Maybe it’s “Vertrag” that needs replacing.

    (And yes, C programmers love obfuscation. Childish bunch. That’s why my language of choice is Python. For programming, that is.)

  2. Hi Margaret
    This is an interestig one – contracts … hate them.
    So what would you yourself suggest in general as translations for the following:

    Both “Contract for Services”?


  3. Aidan: it may be the way I explain it.
    Chris: you’d have to take ‘Dienstvertrag’ out of the Civil Code then.
    Antje: I was thinking that if I have a cleaning lady for a couple of hours a week (which I should, because I’m not doing much), I would not think of myself as an Arbeitgeber, but it would be a Dienstvertrag.
    Paul: well, I wouldn’t translate them both as the same thing. It would depend on the context.
    Dienstvertrag might be ‘contract of employment’, depending on its nature. As a heading, whatever the contract, you could just write ‘Agreement’ – very commonly done in English.
    To distinguish the two, in academic contexts I would add the German term in brackets anyway.
    Other possibilities: Werkvertrag ‘contract to produce a result’, ‘contract for [work and] services (with independent contractor’. It’s quite possible that in certain circumstances Werkvertrag will be a contract for services and Dienstvertrag a contract of service, but I would avoid the terms as they confuse people.

  4. What’s really “great” to translate is the Austrian specialty, Freier Dienstvertrag, which is sort of midway between a freelance contract (Werkvertrag) and an employment contract (Dienst/Arbeitsvertrag).
    A freie Dienstnehmerin has her social security but not her income taxes withheld. She does not use her own resources in working for the “employer” but can have someone sub(contract) in for her, i.e., she need not do the work personally.
    I’ve been calling that a “so-called ‘free employee'”. What do y’all think?

  5. One frequently-met form not mentioned here is Anstellungsvertrag. I was once involved in a case in which US citizens with special skills, living in Germany, were given contracts titled Werkvertrag to provide a certain service for one year (renewable) for a lump sum payable in monthly installments, in which in a sub-sub-paragraph the total hours per week were specified as the basis on which the total payment under the contract had been calculated. It was maintained by some that this mention of hours per week made it an Anstellungsvertrag whatever the title said it was. The company’s legal department claimed that a Werkvertrag is a Werkvertrag if it says it is, even if the contents taken as a whole amount to a pure Anstellungsvertrag, there being no objective criteria in German law by which could be claimed that a particular contract was clearly one and clearly not the other. There was no litigation under the contracts and the Betriebsrat was accommodated in some indirect way so I never did learn whether this view would stand if contested.

  6. Antje: there is this term ‘freier Mitarbeiter’ in German, which is very confusing. I don’t think it’s governed by statute, but I will have to investigate if it’s purely colloquial.
    Freier Dienstvertrag was new to me. I found one suggestion ‘freelance service contract’, but maybe I will do a separate entry on this.
    I tend to avoid ‘so-called’ in English because it is so negative (‘Tell that to your so-called friends’) and either omit it or say ‘known as’ etc.

  7. Derek: The thing about Anstellungsvertrag is that it isn’t a type of contract defined in the Civil Code. I am not the expert on this, but since Anstellung means being an employee, I think they meant Arbeitsvertrag. I suppose the argument was between Dienstvertrag with a freelance (like the Austrian example) and Dienstvertrag with an employee. There surely must be criteria on this. In fact, it used to be a question at the school where I taught: if a person taught six hours a week (a quarter job) they might be employed, whereas with two hours a week they weren’t. I suppose the problem is that you have to spend a lot of money on courts and lawyers if you want to draw the line, and you don’t know which way it’s going to go.

  8. As an Of Counsel myself I’m well aware of the issues. It also comes up in conversation. The sole proprietor I work with and I frequently refer to each other in public as “my colleague”. Or the person whom I “practice law with”, although sometimes we just dumb it down and use the dread partner word with someone especially thick.

    The problem is not that Of Counsel is a bad word, it is that it is an overused word, applied to every non-novice lawyer who is neither associate nor partner.

    The problem is really in the word associate. Most “Of Counsel” are really associates (except in the rare case of co-counsel relationships restricted to a particular case), in the sense that they are people regularly associated with than merely employed by a firm, but the word “associate” which means something closer to “assistant attorney” or “deputy attorney” in common English, has been so debased it can fulfill its proper linguistic meaning.

  9. Thanks for the details. I think when I first heard the term, it was explained to me as an older semi-retired lawyer, so I was surprised when I saw quite a young lawyer described the same way a year or two ago.

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