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Herstellungsanspruch

English translation: claim to the manufacture .....

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06:25 Aug 11, 2006
German to English translations [PRO]
Law/Patents - Law: Contract(s) / Share Contract
German term or phrase: Herstellungsanspruch
The full sentence is: 'Der Herstellungsanspruch von X wird erst ausgeschlossen, wenn Y auf Verlangen von X statt der Herstellung Schadensersatz leistet'

Could Herstellungsanspruch be translated as 'restitution in kind'? That is the best I could come up with. The contract is about X providing tools to Y for the manufacturing of contractual products
Gabriele Hase
South Africa
Local time: 20:24
English translation:claim to the manufacture .....
Explanation:
I think 'Herstellung' (not Wiederherstellung) is to be taken quite literally.
X has to produce tools for Y. Y has a claim on X for the manufacture of those tools. That claim will only become invalid after X has paid damages to Y (for the non-manufacture of those tools).
Selected response from:

Joern Gaedcke
Singapore
Local time: 02:24
Grading comment
Hallo Joern, ja, so habe ich das auch gesehen, vielen Dank.

Mit sonnigen Grüssen aus Kapstadt, Gabriele Hase
4 KudoZ points were awarded for this answer

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Summary of answers provided
4claim to the manufacture .....Joern Gaedcke
3claim to production
Michael Walker
3manufacturing claim/replacement claim
Bernhard Sulzer
3(contractual) right to have manufacturedKieran McCann


Discussion entries: 1





  

Answers


19 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5
claim to the manufacture .....


Explanation:
I think 'Herstellung' (not Wiederherstellung) is to be taken quite literally.
X has to produce tools for Y. Y has a claim on X for the manufacture of those tools. That claim will only become invalid after X has paid damages to Y (for the non-manufacture of those tools).

Joern Gaedcke
Singapore
Local time: 02:24
Works in field
Native speaker of: German
PRO pts in category: 18
Grading comment
Hallo Joern, ja, so habe ich das auch gesehen, vielen Dank.

Mit sonnigen Grüssen aus Kapstadt, Gabriele Hase
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48 mins   confidence: Answerer confidence 3/5Answerer confidence 3/5
manufacturing claim/replacement claim


Explanation:
I believe your text deals with the right to have a product manufactured or replaced - in effect as long as the claimant does not demand monetary compensation for damages.

"replacement claim" - would fit if the text/contract spells out terms for replacing damaged products reference:
http://www.cdr3.com/shipping/sh00001.htm

If this does not fit, please post a little more context.

Good Luck,

Bernhard


"restitutional claim" does not fit - if it is not about recovery of property or money - see http://remember.org/unite/outlinep.htm
and later web reference


http://www.rewi.hu-berlin.de/jura/pd/lmn/sthr/Unterlassungs-...

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Note added at 8 hrs (2006-08-11 15:13:10 GMT)
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Add on: ...as long as X does not demand monetary compensation for damages and Y pays them (instead of manufacturing the product).

question: I agree with Kieran: The contract is about Y providing tools to X for the manufacturing of contractual products - and not -
The contract is about X providing tools to Y for the manufacturing of contractual products



    Reference: http://www.carpetbuyershandbook.com/filing_a_claim.htm
    Reference: http://www.tannerdewitt.com/media/publications/quantum-merui...
Bernhard Sulzer
United States
Local time: 14:24
Specializes in field
Native speaker of: Native in GermanGerman
PRO pts in category: 71
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3 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5
(contractual) right to have manufactured


Explanation:
I agree with Joern's reasoning but I think he's got it the wrong way round: this is about X's claim on Y for the manufacture of the contractual products (the second 'Herstellung' can only refer to Y), not any claim Y may have against X for provision of the tools;

'X's right/claim/entitlement (under the contract) to have the products made/manufactured (by Y)...'

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Note added at 3 hrs (2006-08-11 09:40:22 GMT)
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the point being that if X itself has asked for some kind of damages/compansation/other payment in lieu of the manufactured items, X cannot then also enforce its primary contractual right to have those items manufactured as well

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Note added at 1 day2 hrs (2006-08-12 09:17:47 GMT)
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mischaw is right to draw attention to the other meaning of 'Herstellung' ie 'specific performance'. But, as I understand it, 'Herstellungsanspruch' as a term of art is nearly always used to imply restitution of a previously existing state of affairs, not a claim for specific performance of any contractual obligation.

Romain gives 'right to restitution in kind' and talks about 'restoring the status quo ante' and the vast majority of google hits seem to confirm this, particularly in cases where authorities have been negligent and people have a right to compensation for the consequences.

This is clearly not the case here: we are talking about enforcing a claim under the contract, not seeking redress/restitution for some action of the other party.

If there is a term of art for this in English, then we should use it, but since, for the reasons given, 'Herstellungsanspruch' does not seem to be being used as a term of art in German, I think it does actually imply 'Herstellung' ie 'manufacture' and we will still end up trying to find an appropriate circumlocution referring to X's right to have the contractual items manufactured.

As always, the debate would be helped by more context: it's possible that previous sentences have indeed established a specific right of restitution in certain circumstances.

Kieran McCann
United Kingdom
Local time: 19:24
Works in field
Native speaker of: English
PRO pts in category: 103

Peer comments on this answer (and responses from the answerer)
agree  Lori Dendy-Molz
1 hr
  -> thank you

neutral  Bernhard Sulzer: good point - I added some notes to my explanation
4 hrs

disagree  Michael Walker: Not with you on this Kieran because I think it is more of an abstract term of art, rather than what it literally appears to say
22 hrs
  -> see my additional note
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1 day1 hr   confidence: Answerer confidence 3/5Answerer confidence 3/5
claim to production


Explanation:
I think everyone is trying to approach this from a practical, context-based perspective, which is very understandable, but probably not what the lawyers who drafted the text had in mind. A "Herstellungsanspruch" under German law is a term of art. You can find the relevant provisions of "Werkvertragsrecht" at secs. 631 to 636 of the BGB. The German law of "material defects" (Sachmangelrecht) provides that the customer must first give the Supplier/manufacturer the opportunity "das Werk ordentlich herzurichten" or, as the lawyer in the Common Law context might say, to perform the contract for work and services/produce and supply the goods. Only after such an opportunity has been provided but has been to no avail may the customer make use of the further rights provided under secs. 634 and 635 of the German Civil Code.
Although your "claim to manufacture" or similar may work in this context, I think it is important that people understand that the contractual text is actually using a term of art, which in other contexts would probably not appropriately be translated by the term "manufacture". It is more an abstract, Civil Law concept.

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Note added at 1 day1 hr (2006-08-12 08:19:14 GMT)
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I would also like to add the further possible gloss: "claim to performance" (of manufacturing obligations) as an alternative to the "claim to production".

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Note added at 1 day7 hrs (2006-08-12 14:07:07 GMT)
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http://www.uni-potsdam.de/u/ls_oechsler/lehre/vorl/verSchuld...

"Vgl. § 634 BGB, vglb. § 437 BGB.
- Aus § 631 Abs. 1 BGB resultiert zunächst ein auf Herstellung
gerichteter Erfüllungsanspruch des Unternehmers
(Herstellungsanspruch). Liegt ein Sach- oder Rechtsmangel iSd. § 634
BGB vor, kommen in Betracht:"

Michael Walker
United Kingdom
Local time: 19:24
Specializes in field
Native speaker of: English
PRO pts in category: 29

Peer comments on this answer (and responses from the answerer)
neutral  Kieran McCann: H does not appear in §§ 631-636 BGB//no problem at all with 'claim to performance' for 'Erfüllungsanspruch' just that it doesn't say that: I think we agree what the meaning is here, just a question of how to put it given the choice of words in German
1 hr
  -> The term of art is not "claim to restitution", Kieran, you're wrong about that. See above. I am happy to strike "claim to production" in favour of "claim to performance". Sorry, but we have to disagree on this one.
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