A false friend: control this out

European integration has given rise to the inevitable question of whether there should be an official language in Europe and, if so, what that language should be. English has always been a popular candidate for the job purely because it is the language that so many Europeans already have in common. Brexit may well change that. Whatever happens, English cannot and will not remain unaffected by the native languages of those who use it.

This is already happening to an extent, as The Economist’s Charlemagne notes:

“Some detect a European form of global English (globish): a patois with English physiognomy, cross-dressed with continental cadences and syntax, a train of EU institutional jargon and sequins of linguistic false friends (mostly French). In Brussels, ‘to assist’ means to be present, not to help; ‘to control’ means to check, rather than to exercise power; ‘adequate’ means appropriate or suitable, rather than (barely) sufficient; and mass nouns are countable, such as advices, informations and aids.” (The Economist, May 24th – 30th 2014 at p.28)

The tendency to use the term ‘control’ as a substitute for ‘check’ is a typical error that many of the German lawyers I train tend to make, as is the addition of an ‘s’ to ‘information’ when there is more than one piece of information to be provided. The latter error is fairly easy to correct, but the former seems to be quite ingrained.

The verb ‘checken‘ is definitively classed as slang or ‘Jugendsprache‘ in German native speakers’ minds. It was, ironically, introduced into German from the English and has taken on a range of different meanings (including to understand something or, more often, to fail to understand something, as in “Ich check’ das nicht” ). It also means to check something in the English sense (i.e. to confirm the correctness of something) but German lawyers are extremely reluctant to use ‘check’ in this sense in English for fear of coming across as too informal.

Their next-best option is to use the verb ‘control’ because it sounds like ‘kontrollieren‘ and ‘kontrollieren‘ in German means to confirm the correctness of something. The result is the following:

“The Lender’s lawyers must control that the Borrower has met all the conditions precedent.”

“I attach the second draft of the Sale and Purchase Agreement. Please control it and let me know if you would like to make any amendments.”

The use of the verb ‘control’ in this context sounds rather strange to an English speaker, who would happily use the verb ‘check’ here. In the face of resistance from German lawyers to using the verb ‘check’, I tend to suggest replacing ‘control’ with ‘verify’, ‘confirm’ or ‘review’, depending on the context. So, the above sentences would become:

“The Lender’s lawyers must verify / confirm that the Borrower has met all the conditions precedent.”

“I attach the second draft of the Sale and Purchase Agreement. Please could you review it.”

This seems to be a good compromise in that it allays any (largely unfounded, although very real) fears of coming across like a teenager chatting to friends on Facebook.

That English as spoken in Europe will be affected in some measure by other European languages is certain. What European lawyers who practice in English will need to keep a constant eye on is precisely when the balance shifts from the traditional usage of a term to its modern European usage. We may not have very long to go before ‘controlling a legal document’ means reviewing it rather than dominating it, and no one bats an eyelid when this phrase appears in a contract. However, that day has not yet come.

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