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unter Ausschluss des Fortsetzungszusammenhangs

English translation: Do not translate the phrase itself. See explanation.

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15:16 Jun 11, 2001
German to English translations [PRO]
Law/Patents - Law: Contract(s)
German term or phrase: unter Ausschluss des Fortsetzungszusammenhangs
From a confidentiality agreement:

"Für den Fall einer vorsätzlichen oder grob fahrlässigen Zuwiderhandlung gegen die vorstehenden Bestimmungen wird _unter Ausschluss des Fortsetzungszusammenhangs_ eine Vertragsstrafe von DM ___ fällig."

I understand that "Fortsetzungszusammenhang" means "continuation of the breach," but I'm not sure how to translate the phrase in question.

Would "thereby excluding the breaching party's right to continue the breach" work?
Lee Penya
English translation:Do not translate the phrase itself. See explanation.
Explanation:
I answered this question already only a week ago. Someone has already given you an explanation about the meaning of this phrase, now I will tell you about the translation of this passage. I translate it every day (or very frequently). The passage usually occurs in a document called an "Unterlassungs- und Verpflichtungserklärung" or, in English, a "Cease and Desist Undertaking". It is a document that you make someone sign if they are in breach of something, for example, if they are selling a product bearing a trademark belonging to someone else ("infringing a trademark").

The clause should then read:

"For each individual violation of this undertaking (or "of....(whatever you wish)"), a penalty of DM ......... will be payable."

The "each individual" is the important bit. As explained by the judge, "Fortsetzungszusammenhang" means the possibility to pay only one fine for numerous offences (e.g. if 1000 infringing T-shirts are sold after signing the agreement not to sell them, only one fine of DM 10.000 (for example) would be payable. However, this possibility is ausgeschlossen/excluded. What this means, in the end, is that the offender has to pay DM 10.000 (or whatever the penalty is) for each and every infringing T-shirt (for example) sold after signing the undertaking, so for 1000 T-shirts he would have to pay 1000 x DM 10.000!
Selected response from:

Astrid Elke Witte
Germany
Local time: 20:13
Grading comment
4 KudoZ points were awarded for this answer

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Summary of answers provided
na +1Do not translate the phrase itself. See explanation.
Astrid Elke Witte
na +1excluding the legal theory of a single continued actBeate Boudro
naexcluding continuation of offenceUschi (Ursula) Walke
nasubject to suspension of the continuation of activities
Parrot


  

Answers


35 mins
subject to suspension of the continuation of activities


Explanation:
if the fine is not paid, this is how I understand it.
Ausschluss can be as well suspension or disqualification.

Parrot
Spain
Local time: 20:13
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 4

Peer comments on this answer (and responses from the answerer)
DPS

Astrid Elke Witte: You need to know what this is about in order to answer!
18 hrs
Login to enter a peer comment (or grade)

51 mins
excluding continuation of offence


Explanation:
In case of wilful or grossly negligent non-compliance with the aforementioned provisions/regulations - excluding continuation of offence - an agreed fine of DM ... wil be imposed/due.

or maybe stress the exclusion in a seperate sentence.

HTH


    Romain, Legal and Commercial Terms
Uschi (Ursula) Walke
Local time: 05:13
Native speaker of: Native in GermanGerman

Peer comments on this answer (and responses from the answerer)
Astrid Elke Witte: No. This guess is not right either.
18 hrs
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1 hr peer agreement (net): +1
excluding the legal theory of a single continued act


Explanation:
The "Fortsetzungszusammenhang" (also called "fortgesetzte Handlung")is a legal theory which was developed by the German courts in criminal proceedings. If someone has the intent to commit a number of similar individual legal violations in the same manner and within a certain time period, and carries them out, the "Fortsetzungszusammenhang" treats those acts as a single act. The legal effect is that the perpetrator gets punished only for a single violation and not for the number of legal violations he actually committed.

Creifelds, Rechtswoerterbuch:
"Fortgesetzte Handlung ... ist eine von der Rechtsprechung entwickelte rechtliche Handlungseinheit, bei der mehrere Handlungen, die jeweils selbstaendig den Straftatbestand erfuellen, zu einer einzigen Handlung im Rechtssinne zusammengefasst werden... Die Annahme einer fortgesetzten Handlung bedeutet: Es ist nur wegen einer einzigen Tat zu verurteilen."

The contract provision in your context wants to clarify that the "Vertragsstrafe" is due with any and each individual act that violates the contract and that the violating party cannot claim that the legal theory of a single continued act should be applied in order to avoid payment of multiple penalties.

Maybe you can think of a better translation. I would use the one I am suggesting because it shows that the contract refers to a legal theory (which does not exist under U.S. law).


    Creifelds, Rechtswoerterbuch
    own experience as a judge in Germany
Beate Boudro
United States
Local time: 12:13
Specializes in field
Native speaker of: Native in GermanGerman
PRO pts in category: 16

Peer comments on this answer (and responses from the answerer)
profile removed: Very good - that's what I call an expert in both languages and the law! Chapeau!
33 mins

Astrid Elke Witte: The explanation is correct, but there are better ways of dealing with the translation.
18 hrs

Erik Macki: This is a good legalistic translation but very hard for the American reader to construe.
1 day 5 hrs

agree  Edward edbradburn: Just met this phrase in an NDA. Great explanations from Beate and Astrid, thank you!!!
3880 days
Login to enter a peer comment (or grade)

19 hrs peer agreement (net): +1
Do not translate the phrase itself. See explanation.


Explanation:
I answered this question already only a week ago. Someone has already given you an explanation about the meaning of this phrase, now I will tell you about the translation of this passage. I translate it every day (or very frequently). The passage usually occurs in a document called an "Unterlassungs- und Verpflichtungserklärung" or, in English, a "Cease and Desist Undertaking". It is a document that you make someone sign if they are in breach of something, for example, if they are selling a product bearing a trademark belonging to someone else ("infringing a trademark").

The clause should then read:

"For each individual violation of this undertaking (or "of....(whatever you wish)"), a penalty of DM ......... will be payable."

The "each individual" is the important bit. As explained by the judge, "Fortsetzungszusammenhang" means the possibility to pay only one fine for numerous offences (e.g. if 1000 infringing T-shirts are sold after signing the agreement not to sell them, only one fine of DM 10.000 (for example) would be payable. However, this possibility is ausgeschlossen/excluded. What this means, in the end, is that the offender has to pay DM 10.000 (or whatever the penalty is) for each and every infringing T-shirt (for example) sold after signing the undertaking, so for 1000 T-shirts he would have to pay 1000 x DM 10.000!


    My daily work is about trademarks.
Astrid Elke Witte
Germany
Local time: 20:13
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 87
6 corroborated select projects
in this pair and field What is ProZ.com Project History(SM)?

Peer comments on this answer (and responses from the answerer)
gcaddy: Perfect sense
2 hrs

Erik Macki
10 hrs

agree  Edward edbradburn: Just met this phrase in an NDA. Great explanations from Beate and Astrid, thank you!!!
3879 days
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Changes made by editors
Aug 24, 2005 - Changes made by Astrid Elke Witte:
Field (specific)(none) » Law: Contract(s)


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