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vorbehaltlich

English translation: Absent...pending / Absent...unless

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00:18 Mar 31, 2003
German to English translations [PRO]
Law/Patents - Law: Contract(s) / contract
German term or phrase: vorbehaltlich
Dieser Vertrag tritt zum 1.2.02 in Kraft. Er endet **vorbehaltlich** einer vorherigen Kündigung und der
Uebergabe des Sclussberichtes an XX am ...
Trudy Peters
United States
Local time: 12:44
English translation:Absent...pending / Absent...unless
Explanation:
I appreciate your concern. This is stylistically ungainly and potentially ambiguous drafting. "Vorbehaltlich" is an expedient, but less than ideal means of lumping these somewhat adverse concepts into the same sentence.

Scenario 1:
There's a fixed term for the contract, and a final report must be delivered in any case, perhaps even that of prior termination. (A sales prospecting or advertising kind of contract, maybe.)

"Absent prior termination hereunder, it shall terminate on ___, pending delivery to XX of the final report."

[The "hereunder" evokes whatever mechanics of notice are provided for in the contract. Without "hereunder", the clause contains internal conflicts (i.e., "I'll wear black shoes to school, unless I wear brown"). "Pending" could be replaced with "subject, however, to," but that creates its own ambiguities about whether the failure to deliver can, as a practical matter, thwart the prescribed fixed term of the K, when what the draftsman is really after is to retain the contractual remedies in the event the final report is *not* delivered, e.g. specific performance, a provisional (injunctive) remedy.]

Scenario 2:
The performing party has a limited amount of time to, say, do a study and deliver a final report, otherwise, the K terminates. In that case, delivery of the final report is a condition subsequent, which, if unsatisfied, excuses the other from performance, and terminates the contract for all but purposes of whatever breach remedies are provided for.

"Absent prior termination hereunder, it shall terminate, unless a final report is delivered to XX on ___."

The above is not the misreading by me of the "am" placement it may first appear to be. Just because a sentence is decipherable by exercise of reader presumption doesn't make it clear.

Your third choice is to go with the "subject to" suggestion others have made and let the author reap the apples for oranges harvest of his own comma-free draftmanship: "It shall terminate subject to prior termination and delivery to XX of the final report on __."

Good luck!

Selected response from:

Maureen Holm, J.D., LL.M.
United States
Local time: 12:44
Grading comment
Although in the end I chickened out and used "subject to,"
you deserve the points for the extensive explanation. Actually, I like "absent" better, but as I said... :-)

Thanks to everybody!

Trudy
4 KudoZ points were awarded for this answer

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Summary of answers provided
4 +5subject to ..
swisstell
4 +1Absent...pending / Absent...unless
Maureen Holm, J.D., LL.M.
4subject to
Kim Metzger


  

Answers


2 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +5
subject to ..


Explanation:
:-)

swisstell
Italy
Local time: 18:44
Specializes in field
Native speaker of: German
PRO pts in category: 156

Peer comments on this answer (and responses from the answerer)
agree  Ron Stelter
12 mins
  -> thanks, Ron

agree  Jonathan Widell
6 hrs

agree  conny
6 hrs

agree  Hermann
6 hrs

agree  Anna Bittner
8 hrs
Login to enter a peer comment (or grade)

2 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5
subject to


Explanation:
a previous termination ...



Kim Metzger
Mexico
Local time: 11:44
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 1209
Login to enter a peer comment (or grade)

4 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +1
Absent...pending / Absent...unless


Explanation:
I appreciate your concern. This is stylistically ungainly and potentially ambiguous drafting. "Vorbehaltlich" is an expedient, but less than ideal means of lumping these somewhat adverse concepts into the same sentence.

Scenario 1:
There's a fixed term for the contract, and a final report must be delivered in any case, perhaps even that of prior termination. (A sales prospecting or advertising kind of contract, maybe.)

"Absent prior termination hereunder, it shall terminate on ___, pending delivery to XX of the final report."

[The "hereunder" evokes whatever mechanics of notice are provided for in the contract. Without "hereunder", the clause contains internal conflicts (i.e., "I'll wear black shoes to school, unless I wear brown"). "Pending" could be replaced with "subject, however, to," but that creates its own ambiguities about whether the failure to deliver can, as a practical matter, thwart the prescribed fixed term of the K, when what the draftsman is really after is to retain the contractual remedies in the event the final report is *not* delivered, e.g. specific performance, a provisional (injunctive) remedy.]

Scenario 2:
The performing party has a limited amount of time to, say, do a study and deliver a final report, otherwise, the K terminates. In that case, delivery of the final report is a condition subsequent, which, if unsatisfied, excuses the other from performance, and terminates the contract for all but purposes of whatever breach remedies are provided for.

"Absent prior termination hereunder, it shall terminate, unless a final report is delivered to XX on ___."

The above is not the misreading by me of the "am" placement it may first appear to be. Just because a sentence is decipherable by exercise of reader presumption doesn't make it clear.

Your third choice is to go with the "subject to" suggestion others have made and let the author reap the apples for oranges harvest of his own comma-free draftmanship: "It shall terminate subject to prior termination and delivery to XX of the final report on __."

Good luck!



Maureen Holm, J.D., LL.M.
United States
Local time: 12:44
Native speaker of: Native in EnglishEnglish
PRO pts in category: 68
Grading comment
Although in the end I chickened out and used "subject to,"
you deserve the points for the extensive explanation. Actually, I like "absent" better, but as I said... :-)

Thanks to everybody!

Trudy

Peer comments on this answer (and responses from the answerer)
agree  David Moore: Completely with # 3 BUT: "It shall LAPSE,....final report, on ___."
6 hrs
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