Yesterday I unleashed on an unsuspecting world the following devastating insight:
Instead of "shall without undue delay," I'd use "shall promptly".
— Ken Adams (@AdamsDrafting) April 6, 2015
That’s straightforward enough—if you can express something positively instead of negatively and save a couple of words in the process, then you should do so.
I had planned to leave it at that, but this morning I received the following email from Patrick Wilkening, a transactional IP attorney based in Düsseldorf whom I had the pleasure of meeting when he was working in New York:
I just saw your tweet on preferring “shall promptly” to “shall without undue delay”. I tend to agree, but there is a good reason to still use “without undue delay” in German law-governed contracts. Under German law, there is an accepted legal definition of the term “unverzüglich” to mean “without culpable, i.e., intentional or negligently caused, delay”. So I tend to use “without undue delay”, often followed by “unverzüglich” in brackets, in my German law contracts, since it dovetails so nicely with that definition.
So the moral of this story is that English words and phrases can have unexpected term-of-art implications for contracts governed by the law of a civil-law jurisdiction. I’ll explore this further in the coming months.
Stick more firmly to your guns, Ken.
A fine solution is to say, in contracts governed by German law, ‘shall promptly [unverzüglich]….’
The overall problem is how to make clear that a word or phrase in an English-language contract corresponds to a foreign legal term of art.
If it’s a one-off, the above solution works. If it’s a recurrent thing, a definition works: ‘in this agreement, “promptly” means “unverzüglich”‘.
I suppose one could do much, much more, but don’t you teach that the elegant solution is likely to be the best? Or was that my maths teacher?
Auf Wiedersehen!
I agree with the above comment and can confirm that the “words-in-brackets” approach gets quite messy with comprehensive documentation.
As a UK-born, common law-trained lawyer who has been practising in Germany for over 25 years, I find the issue of “unverzüglich” is indicative of the numerous linguistics tremors occuring daily along the common law/civil law fault line. I have to develop so-called “cross-system” (German law/English language) commercial contracts on a regular basis and the only satisfactory solution I have found is to provide a glossary in the contract including the German terms-of-art (of which there are many) and to include a construction clause to the effect that the German law meaning shall prevail in case of conflict.
In situations where clients insist on English as the lingua franca, a construction clauses and glossary (or definitions) become unavoidable.
Tschüss!
Interesting. Any chance you’d be able to share with me further details of that fault line?
Certainly. But please note that I use the term “fault line” not only because of the obvious metaphor to plate tectonics but also as a reference to the general concept of fault-based liability for most types of contract breach in civil law jurisdictions.
In addition, the fault line involves lots of linguistic “false friends” in English and German law such as “gross negligence/grobe Fahrlässigkeit.” Translators love to use the terminology without realising their inherently different nature and consequences.
More pitfalls can be found in the varying approaches to contract interpretation and pre-contractual liability. The list goes on…
Indeed, I spend quite a bit of my time explaining these points to colleagues and regularly undertake seminars and workshops for the German Law Society Academy (DAA) and others. I have also produced a book and co-authored a English-German legal dictionary covering the issues.
Please feel free to contact me at sgb@augustinbugg.com if you would like to discuss further details.
Hello Stuart, I am a German-to-English translator and would love to order your books. Incidentally, how would you translate “grobe Fahrlässigkeit?” “Recklessness?”