The unofficial English-language rendition of the BGB: § 305, “aushandeln” is not “to negotiate”von , veröffentlicht am 24.04.2019
It is well known that there exists an unofficial English-language rendition of the Bürgerliches Gesetzbuch (the “UNENG-BGB”), which has been made publicly available by the German Federal Ministry of Justice and which is, by that ministry’s own admission, “intended solely as a convenience to the non-German-reading public.” As a practical matter, however, that English-language rendition is, in reality, seldom a convenience. Generally, the UNENG-BGB ranges from unhelpful at best to downright misleading at worst; the consequence, in my experience, is that the UNENG-BGB causes more problems of translation than it solves. I mention this only because German attorneys have the regrettable and somewhat annoying habit of providing English-language texts which rely, in pertinent part, on the UNENG-BGB. Almost invariably, these attorneys claim something to the effect that their English-language text either ought to help with the translation or ought to be relied on – without question – on the grounds that the UNENG-BGB is the “official” translation of the Bürgerliches Gesetzbuch. True story – unfortunately. What is more, this habit is especially annoying when German attorneys advise or intimate that their English translation is terminologically sound merely because it originates in the UNENG-BGB and ought, therefore, to merit approval or certification as is.
One example of a misleading, because unhelpful, word choice contained in the UNENG-BGB is the rendition of aushandeln as to negotiate in detail at Section 305 UNENG-BGB. Simply put, that rendition not only conflates the distinction between verhandeln and aushandeln, but it also stands in contradiction to one of the leading BGB commentaries. In the Palandt BGB – 77th Edition, 2018 – Dr. Christian Grüneberg tells us that “Aushandeln bedeutet mehr als bloßes Verhandeln” (§ 305, ¶ 20) – and if not more than merely, than certainly different from Verhandeln im Einzelnen or detailliertes Verhandeln as well. If one were to believe that aushandeln ought to be translated as to negotiate in detail, then consider translating Dr. Grüneberg’s statement as follows: “negotiating in detail means more than merely negotiating.” One imagines as much; facially, that translation engenders an unhelpful concatenation tainted with bland notes of tautology. But let’s take this one step further.
As a translation of aushandeln as used in § 305 of the Bürgerliches Gesetzbuch, to negotiate in detail is misleading because, in point of fact, determining whether something has been ausgehandelt does not require detailed negotiations. Neither in the Bürgerliches Gesetzbuch nor anywhere else can one find a definition or stipulation or the like that prescribes the amount of negotiated detail required for someone to determine whether something has been ausgehandelt. One suspects the absence of any such definition, stipulation, or the like is grounded in the futility that would inevitably arise from any attempt to draft such a definition or stipulation into compliance with the principle of legal certainty. One suspects, too, that this absence is ascribable not only to that futility, but also to the fact that legal relationships turn less on the activities – such as negotiating – engaged in to establish those relationships than they do on the relative positions occupied and/or intended to be occupied by the parties to the agreement, as the case may be.
In keeping with this suspicion: determining whether something has been ausgehandelt requires, as Dr. Grüneberg tells us, that one has had “the real opportunity to influence the content of the terms of contract” (Palandt BGB, § 305, ¶ 20) [my translation]. That opportunity may or may not involve detailed negotiations. Whatever else that opportunity entails, it requires that “a performance or a return promise” be bargained for, as, say, § 71 of the Restatement (Second) of Contracts has it. In his commentary, Dr. Grüneberg cites the example of choosing between different pricing options offered by a travel agency with and without, say, a right of rescission, as being indicative of Aushandeln (compare ibid.); that example can be readily construed as a performance or a return promise; it can also be construed as granting the buyer a real opportunity to influence the content of the terms of contract. Incidentally, this example requires neither negotiation in detail nor detailed negotiation – in any sense of those words as they are used in English, be it British English or American English or Australian English or the like.
As such, the simple and good translation of aushandeln is to bargain for.
ADDED: Margaret Marks, from Transblawg, has pointed out that "im Einzelnen" is indeed in § 305 BGB, which I stupidly overlooked, and that "in detail" is intended to be a translation of "im Einzelnen." Nevertheless, I stick by the remainder of my post. "To bargain for" is the simple and good translation of "aushandeln." If "to negotiate" is truly intended to mean "aushandeln" at Section § 305 UNENG-BGB, then the UNENG-BGB erroneously conflates the distinction, and it is still misleading for all the same reasons stated above. (As an aside, this is not the first time I've put my foot in my mouth. Won't be the last either, if I know me as well as I think I do.)