The expression of rights and obligations in German contracts

Abstract

This study investigates the expression of rights and obligations in German contracts. It is therefore a study of modality within the specific legal context of contract. The purpose of the investigation is to uncover the actual realisation pattern of the modalities involved in creating contractual rights and obligations and to see how this differs from the realisation pattern generally associated with the concept of modality.
Given the purpose of the study, it is based on a corpus of original texts, which has been converted to machine-readable form and analysed automatically. However, as the object of analysis is of a semantic-pragmatic nature, it has been necessary to manually annotate the texts in order to carry out the automatic analysis.
The analysis first of all reveals that contractual rights and obligations are not always defined explicitly, i.e. through one of the vehicles traditionally associated with the expression of modality, but in actual fact very frequently implicitly, using simple
present tense of the main verb. It is thus possible to leave out explicit markers of modality in a contract for pragmatic reasons, i.e. it is inherent to a contract that it is concerned with the rights and obligations of the contractual parties. Secondly, the analysis reveals an interesting hierarchy amongst explicit markers of modality. The overall most frequently occurring way of laying down contractual rights and obligations is to use a lexical expression such as berechtigt and verpfiichte: - closely followed by implicit expressions. The modal verbs müssen, sollen, and durfen are not even the most
frequently used grammatical vehicle, but are surpassed by the so-called modal infinitive, i.e. a construction of either sein or haben followed by zu and an infinitive. A comparison with statutes and judgments suggests that the modal infinitive is an equally important grammatical marker of modality in the former, but not in the latter.
In this way, the present study demonstrates the importance of carrying out text type specific studies of modality, which also take the pragmatics of the individual text type into account.