Term ‘Certain’ in the legal context
Definition and general explanation
The term Certain comes from the English language and translates as “certain,” “definite,” or “sure.” In legal terminology, “Certain” is used to designate the clarity, distinctness, and definiteness of a fact, statement, or obligation. The use of the term “Certain” is especially prevalent in Anglo-Saxon legal systems, but with increasing internationalization of law, it is also applied in German-speaking legal contexts.
Meaning of ‘Certain’ in civil law
Definiteness of legal transactions
In civil law, definiteness—and thus the term ‘Certain’—plays a central role. According to general understanding, a civil contract or declaration of intent must be sufficiently definite or at least ascertainable (“certain or ascertainable”) so that the content and scope of the legal commitment are clearly recognizable. This affects, for example, the contracting parties, the subject matter of the contract, and the consideration (price, delivery, performance).
Example: Sales contract
Within the scope of a sales contract, the object of purchase and the price to be paid must meet certain criteria. According to § 433 of the German Civil Code (BGB) and the provisions of common law, a contracting party must guarantee “certain terms” so that the contract can be legally binding. In the absence of such certainty, the transaction is considered void, or, under common law, “void for uncertainty.”
Validity of clauses
The term ‘Certain’ is also important with respect to individual contractual clauses. Clauses that are unclear or too general may lead to ineffectiveness. For legally valid contract terms, it is necessary that their content is sufficiently definite (“sufficiently certain”) so both parties can clearly recognize their rights and obligations.
“Certain” in international contract law
Application in English and U.S. law
Under common law, the principle of certainty is of particular importance, especially in contract law. The following maxim applies: “A contract must be certain or capable of being made certain.” This means a contract is only legally enforceable if its essential terms are unambiguous or objectively determinable.
- Certainty of Terms: Essential contract elements (e.g., price, quantity, performance obligations) must be definite.
- Reasonable Certainty: Contract terms may in certain cases be determined by interpretation, even if they are not explicitly regulated.
Relevance in international arbitration clauses
Especially in international commercial law, for example with arbitration clauses, a certain level of “Certainty” is required so that the competent arbitral tribunal and the applicable law can be clearly determined. Lack of definiteness can lead to invalidity of the arbitration agreement.
Application in criminal law
In criminal law, the term “Certain” is fundamentally significant in connection with the principle of definiteness (nulla poena sine lege certa). Accordingly, every criminal provision must be worded so definitely (“certain”) that citizens can clearly recognize which conduct is punishable and what penalty they have to expect.
Principle of definiteness
Article 103 paragraph 2 of the Basic Law (GG) guarantees that no one may be punished for an act that was not previously defined by law. This serves legal certainty and protects against arbitrary prosecution.
Meaning in contract interpretation and enforcement
Contract interpretation
If there are disputes about contractual content, the court must determine whether the disputed separate contract components are “certain” or can be ascertained on the basis of objective criteria. If this definiteness is lacking, the contract may be unenforceable.
Legal consequences of lack of definiteness
If a contractual or statutory provision lacks the required definiteness, this may have the following consequences:
- Invalidity of the entire contract
- Invalidity of individual clauses
- Judicial interpretation to establish definiteness, if possible
Role of ‘Certain’ in European and German law
Numerous parallels to the Anglo-Saxon meaning can also be found in German and European law:
- Im Contract law requires that legal transactions must be as definite or at least ascertainable as possible according to legal doctrine.
- Im Administrative law the principle of definiteness and clarity of administrative acts applies (see § 37 VwVfG).
- Im Criminal law und Administrative offences law definiteness and predictability are central legal principles.
Importance for legal certainty
The use of the term “Certain” and the underlying principle of definiteness serve legal certainty and the reliability of legal relationships. For both private individuals and businesses, it is essential to know their rights and obligations precisely.
Summary: The term “Certain” plays a central role in law, in particular to ensure the definiteness and clarity of legal relationships. In civil law, contract law, criminal law, and international private law, the requirement of definiteness forms a fundamental pillar of the legal order and an important prerequisite for the validity and enforceability of legal transactions and statutory provisions.
Frequently Asked Questions
What legal requirements must be observed when using Certain?
When using Certain in a legal context, particular attention must be paid to data protection regulations, especially the General Data Protection Regulation (GDPR). As a tool for processing personal data, it must be ensured that a valid legal basis for processing exists, for example, the consent of the data subject or the legitimate interest of the controller. Furthermore, transparency and information obligations must be met: Data subjects must be clearly and comprehensibly informed about the purposes, duration, and recipients of data processing by Certain. If Certain is used as a processor, the conclusion of a data processing agreement in accordance with Article 28 GDPR is mandatory. In addition, technical and organizational measures must be implemented to ensure the security of the data (Art. 32 GDPR). When processing sensitive data (e.g. health data), higher protection requirements must also be observed. In certain cases, a data protection impact assessment (DPIA) may be required, especially if there is a high risk to the rights and freedoms of data subjects. If an international data transfer is involved, such as to the USA, appropriate safeguards, such as standard contractual clauses or an adequacy decision, must be in place.
What liability risks exist in the event of errors in the use of Certain?
Various liability risks exist in connection with the use of Certain, which may arise mainly from breaches of data protection regulations. If personal data is unlawfully processed, insufficiently protected, or misused through Certain, the controller is liable for the resulting damage. This applies both to non-material and material damages that may occur to data subjects as a result of data protection infringements (Art. 82 GDPR). Furthermore, authorities may impose severe fines; the GDPR, for example, provides for fines of up to 20 million euros or 4% of global annual turnover. Inadequate technical and organizational measures or the lack of a data processing agreement also bring significant liability potential—both towards authorities as well as third parties. If Certain is used for business-critical processes and contractual breaches occur with business partners as a result, companies are also civilly liable for damages or performance. The internal liability of employees who use Certain in breach of duty is governed by labor law principles.
Is the use of Certain subject to approval?
In most cases, the mere use of Certain as a software solution does not require approval, provided there are no specific legal regulations that provide for an approval requirement for certain activities (e.g., financial services, gambling sector, healthcare). However, depending on the type of processes and data processing supported by Certain, the respective special legal requirements must be observed. In particular, when processing specially protected data (e.g., in the medical sector) or activities requiring official approval, it must be checked whether additional authorization is required for the use of Certain. In companies with a works council, it must also be checked whether the works council must be informed or involved under the Works Constitution Act (Mitbestimmungsrechte regarding systems for monitoring or performance/behavioral control).
What documentation obligations exist for the legally compliant use of Certain?
Extensive documentation obligations exist for the legally compliant use of Certain. According to Art. 30 GDPR, a record of processing activities must be kept, in which all processing operations carried out with Certain are detailed. This includes information on the categories of data processed, the purpose of processing, the categories of data subjects, as well as recipients and retention periods. In addition, proof of compliance with data protection measures must be documented in order to be accountable to supervisory authorities in the event of audits (Art. 5 para. 2 GDPR—accountability). If data protection impact assessments are to be carried out, these must also be thoroughly documented and updated. If security incidents or data breaches involving Certain are identified, these must be documented in accordance with Art. 33 GDPR and, where appropriate, reported to the competent supervisory authority. Finally, the conclusion and contents of any data processing agreements must also be recorded in writing.
Which co-determination rights of the works council must be observed when using Certain?
If employers plan to use Certain and the behavior or performance of employees could potentially be monitored as a result, the works council’s co-determination rights under § 87 (1) No. 6 of the Works Constitution Act (BetrVG) arise. The works council has an enforceable co-determination right when Certain involves technical equipment that can be used to monitor employee conduct or performance, regardless of whether such monitoring is actually intended. Therefore, the works council must be involved at an early stage before the introduction or application of Certain. In the context of a works agreement, the purpose, scope, type of monitoring, and technical as well as organizational measures for data protection and data security must be agreed upon in particular. Failure to involve the works council may render the use invalid and—at worst—lead to injunctive relief or claims for damages.
How is responsibility to be allocated between controller and processor when using Certain?
If Certain is provided as an external tool by a service provider and this provider processes personal data on behalf of the customer, a clear legal allocation of roles under the GDPR is required. In this case, the customer is generally the controller, as they determine the purposes and means of data processing, while the provider of Certain acts as a processor. A data processing agreement in accordance with Art. 28 GDPR must be concluded between both parties. This agreement must in particular regulate the subject matter and duration of processing, the nature and purpose of the processing, the type of data, categories of data subjects, as well as the rights and obligations of the controller and the processor. The controller remains primarily responsible for compliance with data protection provisions but may regularly control and audit the processor. If, by contrast, Certain is merely a tool for self-processing (without access or instructions from third parties), full responsibility remains with the user.
