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  3. Law: Contract(s)

verschuldensunabhängig

English translation: claim to liquidated damages in the amount of

GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW)
German term or phrase:verschuldensunabhängig
English translation:claim to liquidated damages in the amount of
Entered by: David Wallace

18:22 May 22, 2004
German to English translations [PRO]
Law/Patents - Law: Contract(s)
German term or phrase: verschuldensunabhängig
Verstößt die Erwerberin gegen ihre Verpflichtungen, hat der Veräußerer gegen die Erwerberin einen Anspruch auf eine pauschale verschuldensunabhängige Vertragsstrafe in Höhe von...

I translated it as "over and above any debts owed", as in:
Should the Purchaser violate its obligations, the Transferor may assert a claim against the Purchaser for a lump-sum contractual penalty, over and above any debts owed, in the amount of..."
David Wallace
United States
Local time: 14:58
claim to liquidated damages in the amount of
Explanation:
The German is somewhat "doppelt gemommelt."
An even better wording might be "shall be entitle to liquidated damages in the amount of . . ." We don't use "claim" as often as do the Germans.
Sine your context specifies the amount, there is really no need for the "pauschal." Since the context mentions liquidated damages, there is not need to mention "verschuldensunabhaengig," i.e., liquidated damages are by definition a form of strict liability.

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Note added at 38 mins (2004-05-22 19:01:24 GMT)
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Oops! doppelt gemobbelt, oder so \'was aehnliches.
Selected response from:

Dr. Fred Thomson
United States
Local time: 12:58
Grading comment
Thank you for the translation and your explanatory comments--especially since I am not an attorney! I am curious about one thing: this is not the first time I have seen recommendations that "penalty clause" should be left out of translations as they are unenforceable under English law. Isn't that by definition irrelevant when translating German contracts, which (normally, at least) always specify that they will be governed by German law and subject exclusively to the jurisdiction of German courts? In which case, penalty clauses ARE enforceable (presumably)? Just wondering, for future reference.
4 KudoZ points were awarded for this answer



Summary of answers provided
5 +2claim to liquidated damages in the amount of
Dr. Fred Thomson
4 +2A note on liquidated damages
Alarch Gwyn
3no-fault penalty
Olaf Reibedanz


  

Answers


10 mins   confidence: Answerer confidence 3/5Answerer confidence 3/5
no-fault penalty


Explanation:
Dietl/Lorenz:

verschuldensunabhängige Haftung
no-fault liability, liability without fault; strict (or absolute) liability

Vertragsstrafe
contractual (or stipulated) penalty; penal sum; (Abrede über pauschalierten Schadensersatz) (provision for) liquidated damages


This has nothing to do with debts (Be careful not to confuse "Verschulden" with "Verschuldung")!!!

:-)

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Note added at 16 mins (2004-05-22 18:39:09 GMT)
--------------------------------------------------

Another option woud be to say \"regardless of fault\":

Should Purchaser violate its obligations, Transferor may claim a lump-sum contractual penalty, **regardless of fault**, in the amount of...\"

See this link:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=4th&n...

Consequently, Congress specifically intended that all owners be subject at least to some penalty, **regardless of fault**.

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Note added at 18 mins (2004-05-22 18:41:31 GMT)
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I think the second option is much better - \"REGARDLESS OF FAULT\"

Olaf Reibedanz
Colombia
Local time: 13:58
Specializes in field
Native speaker of: Native in GermanGerman
PRO pts in category: 80

Peer comments on this answer (and responses from the answerer)
disagree  Kim Metzger: Always avoid "penalty" for Vertragsstrafe. See Anne's and Margaret's comments below.
8 mins
  -> Muchas gracias!
agree  Sebastian Witte: how about irrespective of fault
26 mins
  -> Yes, why not :-)
neutral  Dr. Fred Thomson: I believe the "regardless of fault" approach may change the meaning. I would be very carefull about its use here. Also, "no fault liability" is an insurance term and is IMHO not really applicable here. Aside from these quibbles, your logic is great.
26 mins
agree  Ingrid Blank: I prefer regardless or irrespective of fault
9 hrs
disagree  Margaret Marks: Avoid 'penalty'; avoid 'no-fault'.
15 hrs
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30 mins   confidence: Answerer confidence 5/5 peer agreement (net): +2
claim to liquidated damages in the amount of


Explanation:
The German is somewhat "doppelt gemommelt."
An even better wording might be "shall be entitle to liquidated damages in the amount of . . ." We don't use "claim" as often as do the Germans.
Sine your context specifies the amount, there is really no need for the "pauschal." Since the context mentions liquidated damages, there is not need to mention "verschuldensunabhaengig," i.e., liquidated damages are by definition a form of strict liability.

--------------------------------------------------
Note added at 38 mins (2004-05-22 19:01:24 GMT)
--------------------------------------------------

Oops! doppelt gemobbelt, oder so \'was aehnliches.

Dr. Fred Thomson
United States
Local time: 12:58
Specializes in field
Native speaker of: English
PRO pts in category: 463
Grading comment
Thank you for the translation and your explanatory comments--especially since I am not an attorney! I am curious about one thing: this is not the first time I have seen recommendations that "penalty clause" should be left out of translations as they are unenforceable under English law. Isn't that by definition irrelevant when translating German contracts, which (normally, at least) always specify that they will be governed by German law and subject exclusively to the jurisdiction of German courts? In which case, penalty clauses ARE enforceable (presumably)? Just wondering, for future reference.

Peer comments on this answer (and responses from the answerer)
agree  Alarch Gwyn: But see note; penalty clause no way
7 hrs
agree  KirstyMacC (X): Good avoidance of penalty: automatically deemed invalid & unenforceable in 'AAL': Anglo-Am. law.
1 day 20 hrs
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1 hr   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +2
A note on liquidated damages


Explanation:
All this means is that the parties are agreeing that they will not go to court in the event of a breach. The purpose of these clauses is to give the parties certainty as to what will be payable should one of them break the contract. Liquidated damages are more commonly known as specified damages in English law.

However if one of the parties wants to argue that the clause is unduly onerous and not binding he will argue (in court) that it is a "penalty clause", in which case, should he be successful, the court will assess the damages to be awarded. It is the content of the clause and not what it is called which decides whether it is a "penalty clause", but putting such words into a contract written in English is a little odd because it would mean to the "English" reader that the parties do not intend their agreement to be enforceable.

Alarch Gwyn
Local time: 20:58
Works in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 39

Peer comments on this answer (and responses from the answerer)
agree  Margaret Marks: But specified damages possibly outside the UK? Liquidated damages is standard there.
13 hrs
  -> I learned both - think specified is easier to understand because it says exactly what it is.
agree  KirstyMacC (X): Yes. We know from the Dunlop case that Eng. courts won't gen. uphold penalty clauses
1 day 19 hrs
  -> Um, this is what I was trying to say!
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