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English translation: provisionnally enforceable EVERYBODY IS RIGHT, BUT . . .

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11:12 Nov 18, 2001
German to English translations [Non-PRO]
Law/Patents
German term or phrase: See sentence
Judgement relating to unauthorized use of brand markings:
Before this sentence appears, the "Beklagete" (company) is condemned to pay damages and get rid of these brand markings.
(preceding sentence= Die Beklagte hat die Kosten des Rechtstreits zu tragen)

Das Urteil ist gegebenfalls gegen Sicherheitsleistung vorläufig vollstreckbar, wobei der Klägerin nachgelassen wird, eine von ihr zu erbringende Sicherheit durch eine selbstschuldnerische Bürgschaft einer Grossbank zu leisten.

Now who has to provide a guarantee? The plaintiff? (Klägerin) (does ihr refer to the plaintiff or to the defendant?)If so, it would mean that the plaintiff would have to provide a guarantee in order to have the judgement become executory at least temporarily, which seems trange to me.
Bruce Sanderson
Local time: 13:04
English translation:provisionnally enforceable EVERYBODY IS RIGHT, BUT . . .
Explanation:
"Judgment" has only one "e,"
and I would say "provisionally enforceable" not "executory."
The effect of this is that the defendant
will be required to get rid of the brand markings and pay the damages immediately. That's where the defendant could get hurt if there is a later reversal by a higher court.
In such case, the D. will need to be reimbursed for its losses cause by the early (immediate) enforcement of the judgment.
To be sure that Plaintiff can come up with the monedy for such indemnification the court is required a surety or guarantee.
Lawyer for 20 yrs; translator for 20 yrs
Selected response from:

Dr. Fred Thomson
United States
Local time: 05:04
Grading comment
Thank you for your explanation.
4 KudoZ points were awarded for this answer

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Summary of answers provided
5 +1definitely the plaintiffSandra Schlatter
5Suggestion:Beate Lutzebaeck
5provisionnally enforceable EVERYBODY IS RIGHT, BUT . . .
Dr. Fred Thomson
4Revised answer based upon closer scrutiny.
Dr. Fred Thomson
4You're absolutely right.
Maya Jurt


  

Answers


8 mins   confidence: Answerer confidence 5/5 peer agreement (net): +1
definitely the plaintiff


Explanation:
The plaintiff has won the case, subject to appeal. If they want the judgement to become temporarily executory, they have to provide a guarantee to protect the defendant's position in case the the decision gets overthrown in the appeal.


    law degree
Sandra Schlatter
Local time: 12:04
Native speaker of: Native in GermanGerman
PRO pts in pair: 95

Peer comments on this answer (and responses from the answerer)
agree  Maya Jurt: I think if the decision is overthrown, the defendant will have to file civil suit to claim damages.
4 mins
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9 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5
You're absolutely right.


Explanation:
The judgement becomes temporarily executory (not at least) if a bank provides a guarantee in the plaintiff's name.

This is not so strange as it seems. The defendant may contest the decision of the court and appeal. Many months will be lost before a definite decision is taken, which causes another loss to the plaintiff since the dispute is about a brand name.

The plaintiff's bank guarantee will be restituted once the court has statued, in any case, positve or negative.

Maya Jurt
Switzerland
Local time: 13:04
Native speaker of: Native in GermanGerman, Native in FrenchFrench
PRO pts in pair: 545
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2 hrs   confidence: Answerer confidence 5/5
provisionnally enforceable EVERYBODY IS RIGHT, BUT . . .


Explanation:
"Judgment" has only one "e,"
and I would say "provisionally enforceable" not "executory."
The effect of this is that the defendant
will be required to get rid of the brand markings and pay the damages immediately. That's where the defendant could get hurt if there is a later reversal by a higher court.
In such case, the D. will need to be reimbursed for its losses cause by the early (immediate) enforcement of the judgment.
To be sure that Plaintiff can come up with the monedy for such indemnification the court is required a surety or guarantee.
Lawyer for 20 yrs; translator for 20 yrs

Dr. Fred Thomson
United States
Local time: 05:04
Native speaker of: English
PRO pts in pair: 5861
Grading comment
Thank you for your explanation.

Peer comments on this answer (and responses from the answerer)
neutral  Beate Lutzebaeck: "Judgement" may not be American spelling but it's nevertheless the correct spelling in British legalese (btw re: netiquette - the usage of caps is considered yelling - surely, a good argument doesn't need this type of support ...)
1 hr
  -> I appreciate your comment about netiquette. I have only been doing this for two weeks.
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3 hrs   confidence: Answerer confidence 5/5
Suggestion:


Explanation:
Since the other answerers' have given you comprehensive *and* correct explanations as to the legal background of your query, the only thing left for me is to offer a possible translation:

"The judg(e)ment shall be provisionally enforceable, permitting the plaintiff to provide security by way of an absolute guarantee issued by a major bank."


    Own prof. exp. as German/NZ lawyer
Beate Lutzebaeck
New Zealand
Local time: 01:04
Native speaker of: Native in GermanGerman, Native in EnglishEnglish
PRO pts in pair: 2079
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4 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5
Revised answer based upon closer scrutiny.


Explanation:
This is how I would now translate the sentence:
The judgment (or judgement depending upon your audience) shall be provisionally enforceable, provided a security is posted; Plaintiff shall permitted to post such security in the form of an absolute guarantee issued by a major bank.

This takes care of the "gegebenenfalls" and renders more accurately the original German.


Dr. Fred Thomson
United States
Local time: 05:04
Native speaker of: English
PRO pts in pair: 5861
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