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Einwendungen, die gegenüber Herrn X noch gar nicht bestanden

English translation: defenc/se barring a right

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GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW)
German term or phrase:Einwendung
English translation:defenc/se barring a right
Entered by: Beate Lutzebaeck
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00:29 Oct 24, 2002
German to English translations [PRO]
Law/Patents / lawsuit
German term or phrase: Einwendungen, die gegenüber Herrn X noch gar nicht bestanden
Eine realistische Erwartung, in einem Streitfall eine günstigere Entscheidung erlangen zu können, besteht deshalb nur dann, wenn entweder

- völlig neue Gesichtspunkte vorgebracht werden können, insbesondere neue Einwendungen, die gegenüber Herrn X noch gar nicht bestanden,
oder
- dem Oberlandesgericht Düsseldorf schwerwiegende Fehler bei der Behandlung des vorangegangenen Falles nachgewiesen werden könnte.

objections (defences) that have not yet been raised (made, presented) against (in the case of) Mr. X?
Marcus Malabad
Canada
Local time: 08:54
defences barring a right
Explanation:
A similar question was posted a while ago, I'll copy my answer for you. It is quite important to understand the distinction between Einwendung and Einrede, as dictionaries provide one and the same translation for the two (Anglo-American law doesn't distinguish between the two, but since they result in a different procedural outcome, the translation should reflect this).

Anyway, here's my answer to the previous question:

"the judge has to consider the Einwendung ex officio (even if it has not been raised by a party) (also as per Dietl/Lorenz).

Incidently, both Dietl/Lorenz and Romain provide the same translations for Einrede and Einwendung (defence, objection and also plea and exception, albeit with extensive explanations), therefore we have to dig deeper to find a solution that carries their actual meaning across into English.

Without getting into the nitty gritty of German legal theory, the main difference between the two is that the Einrede does not affect the right as such but only entitles the person relying on an Einrede to refuse performance (the right will continue to exist and may at some stage be enforceable). The Einwendung, on the other hand, will destroy the right as such, not only its enforceability but also its existence.

I would therefore propose the following translation: Einrede = defence barring performance / Einwendung = defence barring a right"

=> if entirely new aspects are set forth, in particular the raising of new defences barring rights, which defences were previously not available in relation to Mr X [that previously did not exist with regard to Mr X]

It would be helpful to know whether Mr X is the plaintiff or the defendant in these proceedings, Einwendungen are usually raised against claims made by the plaintiff, but that's not necessarily always the case.

--------------------------------------------------
Note added at 2002-10-24 02:29:24 (GMT)
--------------------------------------------------

To Deb:
The point I was trying to make probably got lost somewhere along the way ...

My point is that \"objection\" is not specific enough, as it covers both Einrede and Einwendung and, in addition, is used for all sorts of other procedural statements. Strictly speaking, objection is not incorrect (in the same way as it wouldn\'t be wrong to refer to an ostrich as a bird), but objection as such doesn\'t carry the legal meaning and, more importantly, the specific legal consequences of Einwendung. A successfully raised Einwendung kills a right - that\'s not necessarily the case with an objection.

I believe that the suggested translation \"defence barring a right\" makes it perfectly clear what specific legal result is aimed for by raising this type of objection / plea / defence.

--------------------------------------------------
Note added at 2002-10-24 23:30:10 (GMT)
--------------------------------------------------

And another note (I\'m gonna charge ya by the hour):

The problem with \"nullifying\" is that it can only apply to rights that were already in existence (rechtsvernichtende Einwendung), whereas \"barring\" would apply to both types of Einwendungen (rechtsvernichtend and rechtsverhindernd) and we don\'t know what type of defence the party wishes to raise.

I don\'t agree that the term \"to bar a right\" would apply to an \"Einrede\", as the Einrede does not bar (=ausschließen) a right, but only it\'s performance/enforceability. Once specific requirements are met, this right may be enforced. In contrast, an Einwendung destroys an existing right or prevents the creation of a right - this right is barred.
Selected response from:

Beate Lutzebaeck
New Zealand
Local time: 18:54
Grading comment
thank you!
4 KudoZ points were awarded for this answer

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Summary of answers provided
5defenses nullifying a rightBeate Boudro
4 +1defences barring a rightBeate Lutzebaeck


  

Answers


45 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +1
defences barring a right


Explanation:
A similar question was posted a while ago, I'll copy my answer for you. It is quite important to understand the distinction between Einwendung and Einrede, as dictionaries provide one and the same translation for the two (Anglo-American law doesn't distinguish between the two, but since they result in a different procedural outcome, the translation should reflect this).

Anyway, here's my answer to the previous question:

"the judge has to consider the Einwendung ex officio (even if it has not been raised by a party) (also as per Dietl/Lorenz).

Incidently, both Dietl/Lorenz and Romain provide the same translations for Einrede and Einwendung (defence, objection and also plea and exception, albeit with extensive explanations), therefore we have to dig deeper to find a solution that carries their actual meaning across into English.

Without getting into the nitty gritty of German legal theory, the main difference between the two is that the Einrede does not affect the right as such but only entitles the person relying on an Einrede to refuse performance (the right will continue to exist and may at some stage be enforceable). The Einwendung, on the other hand, will destroy the right as such, not only its enforceability but also its existence.

I would therefore propose the following translation: Einrede = defence barring performance / Einwendung = defence barring a right"

=> if entirely new aspects are set forth, in particular the raising of new defences barring rights, which defences were previously not available in relation to Mr X [that previously did not exist with regard to Mr X]

It would be helpful to know whether Mr X is the plaintiff or the defendant in these proceedings, Einwendungen are usually raised against claims made by the plaintiff, but that's not necessarily always the case.

--------------------------------------------------
Note added at 2002-10-24 02:29:24 (GMT)
--------------------------------------------------

To Deb:
The point I was trying to make probably got lost somewhere along the way ...

My point is that \"objection\" is not specific enough, as it covers both Einrede and Einwendung and, in addition, is used for all sorts of other procedural statements. Strictly speaking, objection is not incorrect (in the same way as it wouldn\'t be wrong to refer to an ostrich as a bird), but objection as such doesn\'t carry the legal meaning and, more importantly, the specific legal consequences of Einwendung. A successfully raised Einwendung kills a right - that\'s not necessarily the case with an objection.

I believe that the suggested translation \"defence barring a right\" makes it perfectly clear what specific legal result is aimed for by raising this type of objection / plea / defence.

--------------------------------------------------
Note added at 2002-10-24 23:30:10 (GMT)
--------------------------------------------------

And another note (I\'m gonna charge ya by the hour):

The problem with \"nullifying\" is that it can only apply to rights that were already in existence (rechtsvernichtende Einwendung), whereas \"barring\" would apply to both types of Einwendungen (rechtsvernichtend and rechtsverhindernd) and we don\'t know what type of defence the party wishes to raise.

I don\'t agree that the term \"to bar a right\" would apply to an \"Einrede\", as the Einrede does not bar (=ausschließen) a right, but only it\'s performance/enforceability. Once specific requirements are met, this right may be enforced. In contrast, an Einwendung destroys an existing right or prevents the creation of a right - this right is barred.



    Reference: http://www.proz.com/?sp=h&id=113935&keyword=Einrede
Beate Lutzebaeck
New Zealand
Local time: 18:54
Native speaker of: Native in GermanGerman, Native in EnglishEnglish
PRO pts in pair: 2079
Grading comment
thank you!

Peer comments on this answer (and responses from the answerer)
agree  Deb Phillips: Is it ok then to translate this as objection?
1 hr
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12 hrs   confidence: Answerer confidence 5/5
defenses nullifying a right


Explanation:
Darien already laid out the distinction made under German law between "Einrede" and "Einwendung".

However, I would translate "Einwendung" as "defense nullifying (or voiding) a right (or claim)".

I believe that the term "to bar a right" would apply to "Einrede" because the right cannot be enforced for certain reasons. However, an "Einwendung" either prevents (nullifies) the creation of the right or claim (rechtshindernde Einwendung) or it voids or nullifies the right or claim that had once been in existence (rechtsvernichtende Einwendung).

For the distinction regarding these German legal terms, see Creifelds, Rechtswörterbuch.

Beate Boudro
United States
Local time: 00:54
Native speaker of: Native in GermanGerman
PRO pts in pair: 253

Peer comments on this answer (and responses from the answerer)
neutral  Beate Lutzebaeck: The problem with nullifying is that it can only apply to rights that were already in existence, whereas barring would apply to both types of Einwendungen. I'm running out of space here - see continued discussion under my answer.
9 hrs
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