misrepresentation

Which translation, when

Why

English law treats misrepresentation as one gateway with three floors, fraudulent, negligent, innocent, and rescission is in principle available on each. German law has no such gateway. A knowing lie is arglistige Täuschung and opens Anfechtung, § 123 BGB, within the one-year window of § 124 BGB. A merely careless or innocent false statement gives no right to avoid on that ground, it is handled as a breach of pre-contractual duty, §§ 311 Abs. 2, 241 Abs. 2 BGB, and the remedy is damages under § 280 Abs. 1 BGB, which through restitution, § 249 Abs. 1 BGB, can unwind the contract, but as compensation, not as avoidance, resting on fault, which the statute presumes and the maker must rebut, and on proof of a loss. So a translation that renders every misrepresentation as Täuschung promotes carelessness to fraud, and one that renders it as Falschdarstellung names no German claim at all.

Typical mistakes

• Falschdarstellung is not a cause of action in German law, the reader cannot tell which claim is meant, and the word marks the text as machine output.
• Täuschung without more implies intent, § 123 BGB requires Arglist, so calling a negligent misstatement a Täuschung accuses the counterparty of fraud.
• Unschuldige Falschdarstellung for innocent misrepresentation is pure residue, German law has no such category, the innocent case simply gives no avoidance.

What matters

Due diligence disputes turn on this word: the seller’s data room contained a wrong figure, the English memo speaks of misrepresentation, and the German answer depends entirely on the mental element. Arglist opens Anfechtung and the § 124 BGB year, mere negligence leads to a damages claim under culpa in contrahendo, and the letter that uses Täuschung for a careless error has just alleged fraud.

Examples