German contracts/Deutsche Verträge

Typical German contracts that I get to translate will start off by naming the parties and in brackets defining a short name, e.g. im folgenden: “Käufer” (hereinafter referred to as the Seller).

That’s similar to the English-language approach. I usually remove the inverted commas. It is not necessary to capitalize seller, at least in England, but my clients appear to expect it.

After this, the contracts usually never use the term Käufer or Verkäufer again! They will write Vertragspartei, or name the company, but having defined the terms they drop them. I have sometimes seen a party referred to in four different ways in one short contract. Or having defined die Produkte (the Products), the writer thereafter refers to die Vertragsprodukte (the contract products – presumably this can’t be capitalized if it hasn’t been defined).

As a result, a translator’s note usually needs to be made. One doesn’t want to use several different terms in English, even if it is easy to do so (which it sometimes isn’t), but nor does one want to misinterpret.

Incidentally, I would love to use the company name instead of Seller, especially where the defined term is hard to translate, but this is usually rejected, possibly because the customer wants a text that can be used in future with a variety of parties (in which case, I need to know that, so I can ensure the translation is not gender-biased, for example), possibly just out of a feeling that this is too great a departure from the German.

Anyway, it’s clear why the defined terms are not used consistently – it’s because the drafter grabbed bits from a variety of sources and did not adapt them. That happens with English contracts too. And the drafter is sometimes not even a lawyer. But still, the prevalence of this in German contracts always surprises me.

Why is it so? I think it must partly be because the German drafter doesn’t feel the definition of terms is needed for clarity. This refers to shortish contracts, of course, not the huge ones preceded by dozens of definitions.

Incidentally, contracts online are often standard contracts intended to be adapted by the user, so they do not vary the names of the parties, since der Käufer/die Käuferin (the latter often refers to a company rather than a woman) are the only terms they have.

2 thoughts on “German contracts/Deutsche Verträge

  1. Interesting points about how to deal with inconsistent nomenclature in a German source contract (e.g. using a translator’s note on the variants “Produkte” and “Vertragsprodukte”). It is always a close call on whether to translate a source text with all its warts and wrinkles, or whether to “localise” it. In this case, my tendency would simply be to call them contract(ual) products. In most cases there is no difference and certainly no problem in understanding, but in some scenarios there may actually be a fine line between “Produkte” and “Vertragsprodukte” (although one hopes this would be mentioned in the preliminaries).

    Another German custom which I find more problematical is the tendency to use the abbreviated legal form of the company as sufficient nomenclature in the “hereinafter” provision:
    ABC AG, hereinafter referred to as “die AG”
    DEF GmbH, hereinafter referred to as “die GmbH”.
    And for the rest of the contract, the German drafter merrily refers to “die GmbH” and “die AG” and expects the reader to remember which is what. That works moderately well in German, but in my view it is rather a flop in English (even more so if you use the long form of the English translation of these terms as a reference), so I generally simply quote the full name of the company including the AG/GmbH references. I suppose here, a translator’s note would be useful for the “hereinafter” provision.

    • By a translator’s note, I meant a note to the client saying ‘I wrote Products, not Contract Products’. There is no conceivable difference in meaning, but the contract is sloppily drafted.
      However, this is a clearcut case. There are definitely, as you say, cases where I don’t know whether the same thing or something else is meant. Provided the client replies, a query is necessary.
      Whenever I have good examples of this, they are too private to mention here, and then I forget them. Possibly I should make a list of problems, which I can then rephrase to disguise their origin.

      Personally, I would have no problem with writing ‘the AG’ and ‘the GmbH’ in English. I would prefer to use the names of the companies, but customers have objected to that more than once, even in contracts where it is obvious that the contract is a one-off between specific parties (more common is an employment contract with a specific man, where the customer wants it to be usable in future without much change for a woman).

      AN I have found a problem. And there are some terms for parties like ‘the principal’ which in some contracts are quite confusing.

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