Given my recent post on German speakers and will (here), I was intrigued to have a participant at yesterday’s “Drafting Clearer Contracts” seminar in Boston ask me why Germans are so eager to use the verb guarantee in contracts.
I’m not sure what use of guarantee that participant was referring to. Guarantees plus noun or guarantees that plus verb? (For more on that, see this 2012 post.) Guarantees to?
I’d be interested to know more. Have you encountered a German predilection for guarantee? If so, please provide examples.
5 thoughts on “German Speakers and Use of “Guarantee” in Contracts”
I translate contracts (among other things) from Italian, and the Italians use ‘guarantees’ quite a lot.
‘Panificio Zandomeneghin garantisce, altresì, la conformità del predetto Stabilimento alle disposizioni di legge e la titolarità di tutte le licenze e autorizzazioni necessarie per lo svolgimento dell’attività e per l’adempimento del presente Contratto’,
which can be translated as
‘Panificio Zandomeneghin confirms/guarantees that the above factory is legally compliant and that Panificio Zandomeneghin possesses
all the licences and permits needed to perform the activities and to comply with this Contract.’
Oliver: Thank you for this.
I think it safe to assume that unless what’s being expressed is an actual guarantee (Party A assuming in favor of Party B the liabilities of Party C to Party B), there will always be a better alternative to guarantee.
Your example is a case in point. It constitutes what I call “language of declaration”: the party in question is simply making a factual statement. I’d just say “PZ states that” or, if that’s too novel, “PZ represents that.” For more on that, see https://www.adamsdrafting.com/using-states-instead-of-represents-and-warrants/.
I am the participant that raised this question during your seminar in Boston (a seminar which, going forward, I will recommend enthusiastically to anyone responsible for drafting or interpreting contracts).
The following is an excerpt from the quality section of a contract I am reviewing:
“Supplier guarantees that the products of batches delivered shall not be of a poorer quality than the sample part inspected and accepted by Customer.” This is the German to English translation.
Ignoring the incorrect use of “shall” (the products do not have a duty), I encounter the use of guarantee quite often in contracts with German parties. Typically, I will change “guarantee” to: “warrants”, “states”, or “represents”, depending on the situation, but there is almost always some pushback to change back to guarantee.
Perhaps, as you suggested, this is simply a declaration.
Gary: Thank you for chiming in. I was annoyed that I hadn’t followed up with you about this at the end of the seminar.
Regarding that sentence, I see two ways of rephrasing it: As an obligation (“The Supplier shall deliver products of a quality that is not less than ….”). Or as a conditional clause (“If the Supplier delivers products of a quality less than … , then ….”). Which works best would depend on the context. (This sort of conditional clause is my alternative to using the verb “warrant”; check MSCD chapter 13.)
It would be language of declaration only if the supplier were making a statement of fact about a specific batch of products, as opposed to products to be delivered in the future. That’s not the case here.
I’m delighted that you found the Boston seminar worthwhile.
What an interesting thread! I am saying this from my perspective as a legal translator German >< English living in Canada.
My experience has shown that Germans who write up contracts in English themselves or translators with little experience in contract language use guarantee very often when they actually mean “warranty” (e.g. warranty of merchantability or of quality) or where the verbs “to ensure”, “to represent” and the like would perfectly express the concept in English. I think that a native speaker of German makes a mental connection to the German term “garantieren” and feels “safe” using it in English (sounds so familiar) all the while ignoring that it would be “safer” to use the term that his or her fellow lawyer and native speaker of English would feel comfortable with in that context.