German Civil Code – Books 1 – 2 Commentary

Dannemann/Schulze: German Civil Code Volume I: Books 1 – 3 Article-by-Article (sic) Commentary

This is a huge thick tome which has just appeared. You might like to have a copy, although you might not like to pay the justified price of over £200 for it.

About 40 authors and over 2300 pages. Here’s the blurb at Beck Verlag.

  1. There are many so-called official English translations of German statutes online. Some are here:

But you can often find translations elsewhere. Austrian and Swiss statutes are similarly available.

There used to be an official site linking translations elsewhere (only as long as the German statutes were current, although translators and lawyers do sometimes need earlier versions). Sadly that cgerli site, cited at the bottom of the opening page of this blog, now only links to hotels in Salzburg. Before that, Robin Stocks used to keep a collection, but I think it would be too much for him and me to resurrect/update it.

There is a side-by-side translation of the new post-2002 bits by Gerhard Dannemann online at the German Law Archive.

The online translation of the BGB is thus described:

Übersetzung durch ein Übersetzer-Team des Langenscheidt Übersetzungsservice. Laufende Aktualisierung der Übersetzung durch Neil Mussett.
Translation provided by the Langenscheidt Translation Service. Translation regularly updated by Neil Mussett.

It only goes as far as the 2013 update of the German original.

2. The Dannemann/Schulze commentary quotes this online translation, plus its own versions of the post-2013 sections. It does not like the translation but I assume foreign lawyers would be confused if the online version, which they sometimes pass on to clients, were different. And it has the great advantage that the authors can point out which bits of the translation they don’t like. I have not yet many examples, as I have not had time to look very closely, but for example, the general part now includes Unternehmer and Verbraucher, which the online translation calls entrepreneur and consumer. The notes show how complex the situation is: the EU directives use the term trader. Dannemann has an online translation of the new parts of the BGB post-2002 and uses businessperson, which I like. The Commentary notes:

The definition of entrepreneur (Unternehmer) is of central relevance…Even though the German word is identical, it must be distinguished from Unternehmer as used in §§ 631 et seq.

By the way, I don’t understand why section 14, in theory identical to the online translation, capitalizes the word partnership:

An entrepreneur means a natural or legal person or a Partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

The online BGB translation is often criticized by translators, but they can’t usually give examples of what they mean. Nor do I feel able to criticize them off the cuff – it’s only on the rare occasions when a specific section is problematic that it strikes me. I am giving the Unternehmer example to show how useful a commentary is.

3. Why does it say on the cover and title page “Article-by-Article Commentary”? Surely these are sections in English?

4. I love German commentaries. They are huge tomes with all sorts of details on the law, section by section. If you really need details on this Code, are not near a German law library and find this volume too expensive, I would recommend buying a used copy of Palandt’s commentary in German. Not dated before 2002, when the Code was greatly changed, but it need not be new. Here’s a screenshot from abebooks today, showing you could get the 2007 version most cheaply. There are later ones available too. I used to pick one up at a students’ bookshop in Germany.

It would answer most questions of the meaning of the Code.

5. This commentary is intended for English-speaking lawyers who know little German or little German law. It has a full introduction putting the Code in historical context. Each section has the original German (dated 2018 I think), the online translation and a number of notes under subheadings. There may be notes on the translation and on EU law.

6. I should repeat what I’ve written before, that the terminology of the BGB is consistent in what now seems an unnatural way. Many criticisms of the translations are based on a misunderstanding – they find a term unnatural and don’t realize it has to be consistent throughout, just like the original. This is why, as I’ve written before too, there must be footnotes. And this volume more than generously provides them.

7 thoughts on “German Civil Code – Books 1 – 2 Commentary

  1. On the translation of Unternehmer as entrepreneur vs. business(-)person, the ex-City of London Solicitor who, as the Chairman or ‘CEO’ ran our translation office in Central London, stopped going out – to a local legal client – another inhouse Solicitor’s (!) translation as entrepreneur.

    The latter label, at that time albeit 40 years ago, had too negative connotations, say of a cavalier tycoon. He preferred the VAT-related translation of trader or, generally, as an operator. So does my UK accountant down in Croydon.

    Obiter, on the initial caps of Partnership, either the translator had been a native German speaker stuck on the capitalis/zation of eine Personengesellschaft, or *a* Partnership had been meant to show a clean break with the preceding qualification of natural or legal.

    • Surely not “trader”! That risks confusion with “Gewerbetreibender”, which is used mainly in tax contexts (consider the difference between “Gewerbe” and “freiberufliche Tätigkeit”).

  2. Yes, I can see the arguments re entrepreneur. What I was trying to say is that this is an advantage of the commentary, that it gives details on a choice of translation. Not sure what you mean by ‘operator’ – that would not work.

  3. My business ‘ops’ allusion had been unduly influenced by Der Grosse Eichborn FWIW (Unternehmer: US / Can. > operator). cf. ‘sole proprietor’ vs. sole trader in the UK.

    It is notable, though, that both Zahn and Arthur Andersen’s glossary – the latter in both the Rechnungswesen + Steuerrecht chapters – give ‘entrepreneur’ as the first-choice translation.

    As already quipped, a non-funereal, statutory undertaker need not be scoffed at for a utilities corporation.

    • Adrian, I’m impressed that anybody still refers to the Andersen glossary! It was “sub-mediocre” when it first appeared, and it didn’t get any better after multiple revisions. I have been told it was basically a vanity publication. This is, after all, a dictionary that translates “Rückstellung” as “accrual, accrued liability, provision” (when of course only the third translation is correct).

      • Thanks Robin. I understand your doubts about the DEU / ENG Arthur Andersen glossary that, rarely but now & again, still comes up with the goods.

        I must say that, after AA – as one of the ‘Big Five’ accountancy firms – had gone down the USA etc. drain post-Enron, I took an illogical aversion to such ‘questionable’ reference work as ‘tainted by the nemesis’.

  4. Robin/Adrian,
    Let’s take this slowly. First of all, I have always translated Unternehmer as entrepreneur. I certainly thought it sounded pompous the first time I used it, but it works, and I don’t think that objection carries any weight in legal translation.

    The term is contrasted with Verbraucher/consumer. Entrepreneur or businessperson (Dannemann’s suggestion) versus consumer, works for me. Operator doesn’t, in relation to consumers

    Secondly, it is used in a different sense in §631 and elsewhere, in connection with Werkvertrag – the parties are Unternehmer and Besteller. The online translation here uses contractor and customer.

    We therefore have different translations of Unternehmer in the BGB. This makes sense, but has to be considered in advance, as the BGB tends to be consistent in its use of terms.

    The problem with the online translation arises in § 241a, where logically the parties should be entrepreneur and consumer, but the translation has trader and consumer. This is an error in the translation. The commentary footnote says “The inconsistency in the translation available under is to be noted here: Unternehmer is translated as entrepreneur in § 13 and other provisions…whereas Unternehmer is translated as trader (as typically favoured in EU legislation) in e.g §§ 241a….”

    Robin doesn’t like trader, but as it’s the standard EU term in precisely this context, I think there’s an argument for using it throughout, despite it having a different meaning in other contexts.

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