Ret eller pligt - konstruktion af parternes identitet i danske og tyske kontrakter

Abstract

In this paper I investigate the construction of an aspect of the identity of contract parties in Danish and German legal contracts, more precisely in tenancy contracts. Legal contracts generally focus on establishing a legal relationship and establishing the rights and obligations of the parties towards each other in accordance with their legal relationship. If for example one party must give the other party something, this can be expressed through constructing discursively one party’s obligation to give or the other party’s right to receive.  Two Danish and two German contracts are analyzed in order to find out if a framing of the identity for each party can be seen in the contracts, as has been the case in other legal genres (McKinlay & McVittie 2011), and it is analyzed if the parties respectively are constructed and framed primarily as having rights or obligations. This identity aspect is investigated through a quantitative and qualitative analysis of the linguistic means used in contracts to express rights and obligations explicitly and implicitly. The explicit means investigated are lexical (e.g. verbs, nouns, and adjectives like ‘berettige’, ‘Pflicht’, and ‘zulässig’) and grammatical (e.g. modal infinitive and modal verbs), and the implicit means analyzed are verbal forms, e.g. present active and passive, that – because they are located in the contract text – can be seen as expressions of rights and obligations for the parties. Furthermore, the assumptions of the text producer towards the parties and his expectations of their future acts that are reflected through the construction of the party identities in the contract texts are discussed in the paper.