The internationalization of legal transactions fundamentally shapes modern M&A transactions. When parties from different jurisdictions are involved in the acquisition of a German target company, bilingual contract processes become indispensable. The combination of negotiation language, contract language, and applicable law places the highest demands on all parties involved.

Transaction Structures and Form Requirements: Share Deal vs. Asset Deal

In German M&A practice, two fundamental transaction structures dominate:

• Share Deal: The company is acquired through the purchase of shares (Share Purchase Agreement, SPA). For a GmbH, notarial authentication is mandatory pursuant to § 15 GmbHG.
• Asset Deal: Individual assets of the company are acquired (Asset Purchase Agreement, APA). If real estate is included in the transaction, notarial authentication is required pursuant to § 311b BGB.

Both transaction types result in notarial deeds that must comply with the requirements of the Beurkundungsgesetz (BeurkG).

The Share Purchase Agreement (SPA): Doctrinal Classification and Practice

The SPA is doctrinally classified as a purchase contract under §§ 433 ff. BGB. However, German M&A practice has largely adopted the comprehensive contract style originating from Anglo-American legal tradition. This "regulatory hypertrophy" is justified by the fact that the BGB does not provide an adequate statutory framework for complex company acquisitions.

The elements of the old BGB purchase law proved largely unusable for the specific needs of M&A transactions. The reform of the law of obligations in 2001 only partially remedied this situation. Since M&A disputes are predominantly resolved through arbitration, there is insufficient case law to fill the regulatory gaps. As a result, the parties must contractually replace the statutory framework with detailed contractual provisions.

Linguistic Discrepancies and Contractual Mechanisms

English has established itself as the dominant negotiation and contract language in international M&A transactions. This development is driven by international financing structures, such as the syndication of acquisition loans in Leveraged Buy-Out (LBO) transactions.

The adoption of Anglo-American terminology -- including terms such as Closing, Escrow Account, and Representations and Warranties -- carries significant doctrinal risks, as an exact translation into the German legal understanding often fails. Conversely, specifically German legal concepts such as Drittschadensliquidation (third-party damage liquidation) have no direct English equivalents.

The practical solution in bilingual contracts is to add specific German legal terms in brackets within the English text. Additionally, a Priority Clause is mandatory in every bilingual contract to establish which language version prevails in case of discrepancies.

Increased Complexity Through Multi-Stakeholder Processes

M&A transactions are rarely purely bilateral affairs. They typically require a multitude of ancillary agreements and regulatory steps:

• Agreements with employee representatives and key employees (retention agreements, management participation)
• Consent and refinancing agreements with banks and financial institutions
• Public law security agreements, such as foreign trade reviews under the AWG/AWV in Germany or CFIUS reviews in the USA
• ESG standard compliance coordination with suppliers and other stakeholders

Each of these workstreams may require its own bilingual documentation, multiplying the linguistic complexity of the overall transaction.

Notarial Authentication of Bilingual Deeds Under BeurkG

Document Language and Foreign Language Competence (§ 5 BeurkG)

Pursuant to § 5(1) BeurkG, notarial deeds are fundamentally drafted in the German language. However, all parties may request that the deed be drafted in a foreign language pursuant to § 5(2) BeurkG, provided the notary possesses sufficient proficiency in that language.

Translation of Minutes (§ 16 BeurkG) and Document Categories

In practice, three categories of bilingual notarial deeds have developed:

• One binding language with mandatory translation (§ 16 BeurkG): The deed (for example, with German text in the left column) constitutes the sole authoritative version. Parties who are not proficient in the document language receive an oral translation by the notary or a sworn interpreter.
• One document language with "Convenience Translation": All parties understand the primary document language. The foreign language column serves purely informational purposes and has no legal binding effect.
• Two equal document languages (Highest Risk): Both language versions are legally binding. Pursuant to § 13 BeurkG, both versions must be read aloud during authentication. If the two versions diverge, there is a significant risk of void declarations of intent. The BGH ruling of 20.03.2019 (XII ZB 310/18) clarified that diverging language versions may result in formal nullity of the notarial deed.

Cost note: Foreign language authentication or two-column deeds where the notary provides the translation incur a 30% surcharge (capped at EUR 5,000) pursuant to KV-Nr. 26001 GNotKG.

Conclusion and Process Optimization

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The software automates the creation of error-free bilingual contract tables and allows users to transfer negotiated passages between languages with a single click. Compared to generic tools like DeepL, ChatGPT, or Gemini, Make it bilingual offers significant advantages through functions specifically tailored to legal contract negotiations and professional formatting requirements.