Why ‘to be obliged’ is not the best translation of ‘sich verpflichten’von , veröffentlicht am 03.01.2023
Recently, I have seen several posts on social media about legal translation in general and about German to English legal translation in particular. In more than one of these posts, the author claimed that the translation of ‘sich verpflichten’ is ‘to be obliged.’ As with all translation, the proper translation of this verb will depend on a variety of factors, and this translation is not unfailingly bad; in certain contexts it might be precisely what one wants or needs. But general considerations compel one to exercise caution; as a translation of ‘sich verpflichten,’ ‘to be obliged’ can be inaccurate for the following reasons.
Legal writing and, by extension, legal translation are mostly, they are not completely, neutral exposition. No exposition can be completely neutral; neither should it be. Generally, however, neutral exposition – and by extension its translation – aims to accomplish two things. First, neutral exposition aims to create unambiguous prose; ambiguities, to borrow a turn of phrase from I.A. Richards, can be a nuisance. And they are a nuisance, perhaps especially so, in neutral exposition. Second, neutral exposition aims either to temper emotion or to eliminate it – with varying degrees of success and failure, of course. So, why are these two things relevant? Well, as a translation of ‘sich verpflichten,’ ‘to be obliged’ fails, it seems to me, on both counts. It is both ambiguous and fails to temper or to eliminate emotion; on the contrary, it creates a nuisance, and an ironic one at that, and causes emotion without warrant.
‘To be obliged’ is ambiguous, in that it resolves two alternative meanings into one phrase. ‘To be obliged’ can mean ‘to be required’ or ‘to be obligated,’ or the like, to do something by law, as a promise, in consideration of something else – each with corresponding rights (roughly put, one party is obligated to render certain performance, the other has a right to that performance). But it can also mean ‘to be forced’ or ‘to be compelled,’ or the like, to do something one would rather not do. This general consideration alone warrants caution in translating ‘sich verpflichten’ as ‘to be obliged’: its two alternative meanings are contradictory and cannot be exchanged willy-nilly, the one for the other. (Take an example from Susanna Clark’s delightful novel Jonathan Strange & Mr Norrell. On page 18, she writes, “There was such a crush of [people] in the room that, for the present, a great many were obliged to stand.” ‘Obliged’ is perfect here, as Ms. Clark’s word choice and word placement often are; the people were forced to stand, when they would have preferred to sit. ‘Obligated’ would have been unforgivable here, a barbarism of sorts.)
It seems to me that ‘to be obliged’ always carries overtones of force and that these overtones remain latent even when the meaning of being required or obligated to do something in consideration of something else is intended. They remain latent, it seems to me, not only because the adjective form of ‘obliged’ used in ‘to be obliged’ means ‘forced’ or ‘fated’ (that’s one of the dictionary definitions of ‘obliged’ – even in Great Britain), but also because all these concepts, required, obligated, forced, compelled, are related in important ways, whose intricacies will depend on context. As such, they are not in all respects synonyms. ——But allow me to stop here. This exposition is an example of precisely the kind of problem that ‘to be obliged’ causes in the context of a translation.
It has been my experience that, in practice, the translation of ‘sich verpflichten’ as ‘to be obliged’ often leads to questions of the kind: what is meant? what distinction is being made? one, say, between ‘force’ and ‘obligation’? is any distinction being made? how does ‘obliged’ affect the nuances here and elsewhere within the four corners of this document? is the same language used here and elsewhere and does the latent idea of force work here and not elsewhere? is it important that the language be uniform throughout? In other words, its contradictory alternatives in meaning and its operative and latent overtones render ‘to be obliged’ an ironic nuisance as a translation of ‘sich verpflichten’; this translation forces readers to reread and to think about subject matter they would prefer not to read or to think about in the first place. No one wants to read, say, a contract. One reads a contract, because one is obliged to read it to some end, to enter into an employment relationship, to buy real estate, to learn about contracts, to mine for terminology, and the like. In all these cases, the contract is not the point, the end pursued with it is: the employment, the real estate, the knowledge, the terminology.
And any translation that distracts from that end is a nuisance and leads to unwanted and unnecessary frustration, an emotion not exactly conducive to understanding. Put simply, the frustration is unwanted, because sorting out ambiguities is not always a deadline-friendly use of one’s time as a translator or attorney. It is unnecessary, because no such distraction is engendered by the German ‘sich verpflichten.’ This verb generally expresses something more or less neutral, say, an acceptance of a considered imposition of a duty or of an obligation or a promise to do something in consideration of something else – each with corresponding rights. A review of Duden’s definition of ‘verpflichten’ suggests as much. Duden defines this verb to mean, among other things, “durch eine bindende Zusage auf etwas festlegen; versprechen lassen, etwas zu tun”; “etwas ganz fest zusagen; versprechen, etwas zu tun”; “jemandem als Pflicht auferlegen; ein bestimmtes Verhalten, eine bestimmte Handlungsweise erforderlich machen, von jemandem verlangen.”
As such, neither the ironic nuisance nor the frustration is warranted in any translation of this verb. Sure, one still has the problem of choosing between alternative meanings, but the choice is not between contradictory, but rather between related alternatives of the kind one would expect to find in a contract, whether drafted in English or German – as it were, the bread-and-butter problems of legalese.
Now, neither in legalese nor in everyday speech is there always a hard distinction between duties, obligations, and promises. All their meanings are interrelated. And interrelations between meanings are precisely what makes translation in general and legal translation in particular so enjoyable – and uniquely human. Still, the distinction is helpful. It helps remind one to look, and to account, for nuances of meaning when and where necessary.
So, how should one translate ‘sich verpflichten’? Well, that depends. The first thing one must do is to determine whether a considered imposition of a duty or of an obligation is being accepted or a promise being made in consideration of something else and what, in each case, the corresponding rights should be. After one makes those and other determinations, one must consider any number of other extant factors determinative for the accuracy or inaccuracy of a particular translation.
And while I do not wish to discount the possibility that any number of other colorable translations of ‘sich verpflichten’ are possible, I do wish to suggest that, in practice, the number of colorable translations is generally three. These are (1) ‘to be required,’ (2) ‘to be obligated,’ and (3) ‘to agree.’ Very generally, even very roughly, speaking, both ‘to be required’ and ‘to be obligated’ will correspond to the meaning of ‘sich verpflichten’ as the acceptance of a considered imposition of a duty or of an obligation; ‘to agree’ to the meaning as the making of a promise.
‘To be required’ has the advantage that it is idiomatic and readily understandable, perhaps especially within the four corners of a contract; in contradistinction to ‘to be obliged,’ whose ambiguity is always contradictory, ‘to be required’ can be usefully ambiguous, provided the context is ambiguous, for whatever reason: in certain, surely though not in all, contexts, it can leave open whether the requirement exists by law, was made as a promise, or entered into as a contractual obligation. ‘To be obligated’ has the advantage that, like ‘obliged,’ it shares an orthographic idiosyncrasy with its German relative, but without being marred by the same ironic nuisance and frustration that ‘obliged’ is: ‘verpflichten’ shares a root with ‘Pflicht’ and ‘Verpflichtung,’ as ‘obligate’ does with ‘obligation.’ As a former boss of mine, an attorney admitted to practice in both Germany and the United States, once put it – not to state some incontestable fact, but rather to highlight the role the root of a word can play in contract construction: “Die Verpflichtung kommt vom Verpflichten.” ‘To agree’ has the advantage that one of its meanings is ‘to exchange promises’ (see, for instance, Black’s Law Dictionary).
To conclude: I am not saying that one should not use ‘to be obliged’ in writing or in legal translation generally or that ‘to be obliged’ is unfailingly a poor translation of ‘sich verpflichten.’ I am saying only that ‘to be obliged’ will generally be an inaccurate translation of ‘sich verpflichten.’ I am saying that one should look for alternative translations justifiable by reasons similar in nature to those given above. I am saying that ‘to be obliged’ can, and will when it is most inconvenient, come with overtones and/or create an ironic nuisance and/or cause frustration, which will try readers’ attention and patience in a world in which readers’ attention and patience are already tried and burdened by countless other texts they would prefer not to read, but are obliged to read to some end.