Service agreements and Dienstverträge

In his entry Kein Dienstvertrag mit Microsoft, Ingmar recently commented on the translation into German of a Microsoft licence agreement.

Microsoft original English Microsoft German translation

CONTRACT FOR SERVICE. This is a contract between you and Microsoft for use of the Microsoft .NET Messenger Service. We are Microsoft Corporation (located at One Microsoft Way, Redmond, WA 98052-6399) or, based on where you live, a Microsoft affiliate. We will refer to ourselves in this contract as either “Microsoft”, “we” or “our.” You are an individual person.

DIENSTVERTRAG Dies ist ein Vertrag zwischen Ihnen und Microsoft hinsichtlich der Nutzung des Microsoft .NET Messenger Services. Wir sind die Microsoft Corporation (Adresse: One Microsoft Way, Redmond, WA 98052-6399, USA) oder, je nachdem, wo Sie wohnen, ein verbundenes Unternehmen von Microsoft. Wir bezeichnen uns in diesem Vertrag entweder als “Microsoft”, “wir” oder “uns“. Sie sind eine Einzelperson.

Now obviously Ingmar was aware he didn’t have an employment contract with Microsoft. For one thing, he wasn’t getting any salary, and on top of that they seemed to be excluding so many things that they didn’t sound like an ideal employer.

However, their translator isn’t alone in his difficulties. Here’s a brief and not very academic summary of the problems:

In English law there is a distinction between a contract of service and a contract for services. This is pretty confusing in itself, and there’s an argument for just not using the terms at all. But since they exist, here’s the lowdown:

Contract of service: a contract of employment. The employee may be employed, say, for 40 hours a week, and the employer can to a large extent decide where the employee works and at what times. Employment law used to be called master and servant law. You could call this an Arbeitsvertrag

Contract for services: a contract with an independent contractor, for example with a translator.

In more recent times, the term Service agreement or Service contract has begun to be used to mean something like Wartungsvertrag. The meaning would be expected by a non-lawyer, but it doesn’t exactly help having a third entity here. Whenever you have to translate something headed Contract for Services, work out what it is before you start.

Now in German law, this distinction between employee and independent contractor is perfectly familiar, but the contract titles don’t follow it. We have:

Dienstvertrag: contract to perform an activity, for instance to work for 40 (or fewer) hours per week. Arbeitsvertrag (contract of employment) is a subcategory.

Werkvertrag: contract to produce a result, for example to make a photograph.

This is a bit peculiar to my mind, as you could have a Dienstvertrag to bake pizzas for three hours, or a Werkvertrag to produce a certain number of pizzas, and the two would be different legal arrangements. And for instance, if you pay a gardener to mow the lawn for two hours, it is a Dienstvertrag, because it’s measured in hours.

It isn’t always easy to draw the line between the two contracts, and there are mixed contracts, but that’s going too far for my purposes here.

So we have two dichotomies, one in English and one in German, and they are not the same. You cannot go around translating Dienstvertrag as contract of service and Werkvertrag as contract for services. Nor can you say, if a gardener I pay for two hours’ work a week has a Dienstvertrag in German, that because he has a contract for services in English, you will translate it that way. We have two different legal systems with two different distinctions.

And for years I used to find that students found this all too much and when they were confronted with the German terms they just applied the English terms because they wanted them to be right. Not that I imagine that Microsoft translator was one of mine.

By the way, under German law translators usually have a Werkvertrag and interpreters a Dienstvertrag - that is if they’re freelances. In England, they would both have a contract for services.