German Speakers and Use of “Will” in Contracts

Today @KentPitman shared the following thought with me:

I used to do programming language standardization both nationally and internationally. I noticed some German speakers had a particular attitude (I’d almost say phobia) around the use of the word “will” as a compulsion.

They never explained it and seemed to think it was obvious, so I’m not certain, but I eventually came to believe it was because the German verb “wollen” conjugates to “will” and is an apparent false cognate with English, so I think they were worried the English word would have the sense it seems to have in German. (I’m not a German speaker, but take this as something to look into if you know someone who is.)  Maybe start here:

It seems to have the meaning “prefer” or “want” or “come what may” and this seemed to be what they feared—that it was a verb of volition (which may even be the etymology of volition, I didn’t check).

Someone who attended one of my seminars in Hamburg earlier this year mentioned something similar. In theory, it could make native German speakers squeamish about using will in language of policy in contracts, as in Acme will be responsible for paying all taxes and This agreement will terminate if ….

German speakers, what say you? How does this play out in the categories-of-contract-language scheme of things?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

9 thoughts on “German Speakers and Use of “Will” in Contracts”

  1. Yep.

    There are two kinds of “will” in German, wollen and werden.

    Wollen (Ich will) conveys a sense of intention or desire. It’s related to the will in “will into existence” or “will to live.”

    Werden (Ich werde) is more of a statement of future fact. Werden is listed in dictionaries as translated to “become,” but it doesn’t map perfectly to “become” in English. “I will turn 30 in September.” or “You will be charged a late fee.” You don’t want these things to happen, so you’d never say “Ich will…”

    I’m not a native German speaker, and I’m not a German contract drafter, but I’d assume that “wollen” and “will” are German words to be avoid in contracts. (Except perhaps for recitals? E.g. “The Parties desire (will) that the world is a better place.”)

    • My feeble high-school German is coming back to me!

      In the MSCD scheme of things, will is an essential contract word. It’s used in language of policy, which is for rules that don’t, at least expressly, require or permit action or inaction by parties. Instead, it’s for stuff that happens automatically. (See MSCD 3.240.) If the policy relates to future events that might not take place, or the timing of which is uncertain, it’s appropriate to use will rather than the simple present tense, as in the two examples in my post. (I added a second example.)

      The example Acme will be responsible for paying all taxes is a little subtle. It expresses the idea that Acme doesn’t have a duty to the other party to pay any taxes, but if someone looks to the other party to pay taxes, Acme will be liable. That’s why it’s language of policy rather than language of obligation. As a practical matter, the distinction isn’t of much significance; it probably wasn’t the best example to use.

      • “Acme will be responsible for paying all taxes” (=original formulation): isn’t that either (a) a conditional obligation better expressed “If someone looks to Widgetco to pay any taxes, Acme shall pay them” or (b) an indemnification obligation better expressed “Acme shall indemnify Widgetco from taxes”? Shouldn’t the original formulation be rejected (c) as unclear between two interpretations, and (d) a use of “will” when the meaning (obligation of a party) requires “shall”?

  2. Native German speaker here. Personally, I never connected a hesitancy to use “will” with the meaning of the German word “wollen”. But I think it’s easily conceivable that this meaning influences some German speakers’ use of “will”.

    Additionally, there seems to be a strong perception among many German speakers that “will” + infinitive always denotes a simple future tense, i.e., that there is no connotation of compulsion or obligation. On the other hand, it is common knowledge that “shall” denotes compulsion / obligation in contracts. Taken together, I believe this makes many German speakers feel that using “will” is somehow wrong in a context of compulsion or obligation. They would rather replace “will” with “shall” in sentences such as Ken’s example “Acme will be responsible for paying all taxes”.

  3. I tend to agree with Patrick, that Germans who know about legal English expect ‘shall’ for compulsion. I have a caveat about the term ‘simple future’ – there are at least five ways of expressing the future in English and they overlap with modal meanings.
    Ken’s remarks about ‘will’ being ‘language of policy’ are new to me but I haven’t got any drafting books or other references with me now so I can’t easily consider it further. To me, ‘will’ is often used in insurance contracts for the insurer rather than the insured, but is just as binding as ‘shall’. ‘Will’ often implies a promise in everyday English and a promise in a contract is just the same as an obligation. If that is right, it is not widely known among non-native writers/readers of legal English and I think that’s where the problem lies. For instance, I think my clients might prefer ‘shall’ to ‘will’, which might lead to the phenomenon of translators over-simplifying the English language in order to avoid discussions.

    As for the suggestion about ‘wollen’, I find the wordreference definition confusing because of all the examples it gives which I would put under ‘also ran’, that is, idiomatic uses which don’t match the subdivisions. But I haven’t got Collins here so I won’t go into it any further. In legal language, ‘wollen’ is usually ‘intend’. I’m a bit confused by the use of ‘false cognate’ and ‘conjugates to’.

    • Thank you. FYI, in A Manual of Style for Contract Drafting I explain at length why a drafter should not use different verb structures to convey the same meaning—it’s conducive to confusion in the mind of the reader and, even worse, the drafter.

    • I meant “conjugates to” in the sense that the infinitive is “wollen” but the usage when the verb is conjugated appears to reveal the exact word “will” as in “ich will…” I’m not a German speaker so am going by what wordreference said. Hence, I could be mistaken in my understanding. That’s one reason I allowed Ken to quote me here–so I could find out the opinion of others. I appreciate your feedback.

      About “false cognate”, that term is usually used to mean “a foreign word that is also a word in your own language but doesn’t mean the same thing, so risks confusion”. In ordinary American English as spoke, there is no ambiguity that “I will” asserts certainty, not intent. “I will be there.” means “You should not doubt that I will be there.” It is an acceptable response to a question like “I know you intend to be there, but will it turn out to be true?” One may simply say “I will.” and that asserts it will be true. (It might not later be, of course, but no one can predict the future. It expresses more than intent.) So if in German it means only “I intend”, then “ich will” only looks like “I will” and really doesn’t mean the same thing at all. That was what I finally inferred must cause the near panic every time I would write “will” into the documentation project we were working on. It was as if I had written “should” or “might not”, which is just not the sense of what English intends. As to what legalese intends, though, I’ll defer to Ken.

      I just wanted to clarify what I meant by those since you asked. I hope that helps. :)


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