Divorce

When I first taught legal translation, as a subsidiary subject, I started with divorce. At the IFA in Erlangen and other Bavarian Fachakademien, the legal translation syllabus was based on work done for the courts by certified translators, which our students would be qualified as. Translating divorce papers was very common in those days, for example for US military personnel living in Germany. So expensive was the translation of documents needed by the German courts that there used to be divorce translation weekends, for some reason offered in Copenhagen. In fact after I had taught all the areas relating to court work, it was hard to fit contract translation into the timetable, since I thought it would be necessary to teach both contract law and contract language.

Those unfamiliar with divorce law sometimes thought that, since English law is different from German law, English divorce law must be very strange indeed. Not so: divorce had a similar history in both countries, going back to church law, to times when some kind of transgression permitted a petitioner to be given a divorce. The terminology was sometimes archaic even though the law had been reformed so that you were not punished financially or through harsh custody arrangements if you had committed adultery. English divorce law was reformed earlier than German and the law when I first taught it in 1982 and now in 2019 has unintended consequences. In German law a person can get a divorce after one year’s living apart; in English law it takes longer, so it is quicker to petition that the respondent’s behaviour is unreasonable (that is, that the petitioner cannot reasonably be expected to tolerate it). What is called no-fault divorce actually seems to be based on fault. This is not to say that divorce plays out as a pleasant and smooth process in practice even in Germany, but we didn’t talk about that. Nowadays you can read all this up on the Web so I don’t need to go into details. Anyway, all these many years afterwards, a divorce bill is going through the courts making divorce much easier – actually very easy indeed. New divorce law to end the blame game (Ministry of Justice – with a good summary of the current law)). The Divorce, Dissolution and Separation Bill has almost been passed. Of course, it is threatened by prorogation.

DE>EN translation problems: most frequently encountered are the terms related to the apportionment of future pension rights. Zugewinnausgleich, Gütertrennung, Gütergemeinschaft – marital property is not always straightforward. If you translate US documents into German, you have to be careful not to describe a decree absolute as rechtskräftig, which might wrongly suggest that the ex-spouses could remarry immediately (there may be a six-month waiting period). Not divorce but sometimes comes up in that context: Ehefähigkeitszeugnis – certificate of no impediment.

Unverzüglich

A colleague recently had the word unverzüglich in a legal text and wondered whether it mattered which of the many alternatives to choose.

Romain: prompt, forthwith, without delay

Dietl-Lorenz: (ohne schuldhaftes Zögern) without culpable (or undue) delay

I had wrongly remembered this as without unreasonable delay. Other renderings have been immediately and with all due speed

  1. I note that unverzüglich ist one of the words given a statutory definition (Legaldefinition) in the Civil Code. Here it is:

Bürgerliches Gesetzbuch (BGB)
§ 121 Anfechtungsfrist

(1) Die Anfechtung muss in den Fällen der §§ 119, 120 ohne schuldhaftes Zögern (unverzüglich) erfolgen, nachdem der Anfechtungsberechtigte von dem Anfechtungsgrund Kenntnis erlangt hat. Die einem Abwesenden gegenüber erfolgte Anfechtung gilt als rechtzeitig erfolgt, wenn die Anfechtungserklärung unverzüglich abgesendet worden ist.(2) Die Anfechtung ist ausgeschlossen, wenn seit der Abgabe der Willenserklärung zehn Jahre verstrichen sind.

Note the way a statutory definition is indicated. Further research reveals that this definition is regarded as applying even outside the Civil Code.

2. Does it then matter how precisely it is translated into English? Immediately seems to suggest more speed, but does that matter? Perhaps not, as long as your translation is for information only and makes it clear that German law prevails. However, without undue delay or without culpable delay does the job well.

3. Dietl wins over Romain here (as so rarely). Von Beseler has:

adj immediate, prompt, instant(aneous);
adv immediately, promptly, instantly; forthwith; at once; on the spot; without delay; at short notice, at a moment’s notice

The BGB meaning is missing, and when it comes to choosing between the other alternatives, legal translators are left to themselves. Nor is there any indication in Dietl of the source of the definition.

LATER NOTE: As Inge Noeninger points out on Twitter (see comment too) unverzüglich contains the word Verzug, delay or default, which is why translating it as immediately is avoided.

Rebecca Jowers ES>EN legal translation blog

I’m a bit late to recommend Rebecca Jowers because I don’t so often look at Spanish/English legal resources. But I have noticed that she is authoritative in advising on British as well as US usage.

An introduction: Why this blog? is the first post

I created this blog to share some of the translation pitfalls that I’ve encountered along the way, many of which were brought to my attention by fellow translators, my students of legal English, and law professors, attorneys, judges and other translation clients. It is intended to be a meeting place for translators, interpreters, lawyers and law professors for whom legal terminology is an essential element of their professional activities in both languages. Thus I welcome comments and suggestions from the many experienced colleagues in the profession who, as I am, are enthusiastically devoted to the study of Spanish-English legal terminology. Some of the areas I will be exploring include:
ES-EN legal terminology
Legal English for Spanish-speakers
False friends
Multiple meanings
Confusing terms
Common words with uncommon legal meanings
Expressing civil law concepts in common law terms
Español jurídico
Latinismos
Mistranslations? and
Terminology sources

The blog is called Léxico Jurídico Español-Inglés.


Rebecca has also published A Thematic Lexicon:ñhere is a review by Rob Lunn, whose blog I’ve also recommended in the past.

m/w/d DE>EN

I recently translated this (männlich/weiblich/divers) in a job ad as m/f/x. Other suggestions made by colleagues were more experimental. However, I am now seeing “m/f/d” (mainly on German sites?). And in the USA there is m/f/d/v meaning masculine/feminine/disabled/veteran.

There is an academic job site in the UK and I see they have Professor (m/f/d) International Management and Finance at the Technische Hochschule Deggendorf and Postdoc (m/f/x) at the Helmholtz Centre for Environmental Research in Leipzig.

Functional and formal equivalence in legal translation

Some TranslationTalk tweets this week reminded me of the terms functional equivalence and formal equivalence. I haven’t thought about these terms for years so I thought I would refresh my memory. (This is not a disagreement with the TranslationTalk tweets – they just reminded me of it).

When I started teaching legal translation, in the late 1980s, in those glorious days when no one much wanted legal translation at all, let alone for it to be taught, except, as it happened, the Bavarian courts, I was pleased to be recommended Martin Weston’s book An English Reader’s Guide to the French Legal System. I should add that legal translation had not yet been discovered as such a cornucopia for academic investigation – this was before Susan Šarčević’s New Approach to Legal Translation (which was hampered by having to take many of its translation examples from Canadian French, which is usually translated into Canadian Frenglish). We didn’t have internet resources in the 80s, whereas nowadays, at least for the German and English language pair, there are plenty of bilingual materials online.

Martin Weston had translated in the Secretariat of the Council of Europe in Strasbourg and was then Senior Translator in the Registry of the European Court of Human Rights. His book was originally a dissertation for a linguistics MA. He has a full bibliography of works on linguistics and translation theory; law; and dictionaries and lexicography.

I found Weston’s analysis of how to translate legal terminology very useful for teaching, though when I myself had a problematic term to translate, I didn’t run through his categories in my head but simply decided how close the German and English terms should be and how they would work in my context before I decided how to translate them.

Weston says that there are five possible approaches to translating ‘culture-bound’ SL expressions (incidentally it looks as if Newmark did something like this at an earlier date):

  1. nearest equivalent TL concept (départment: county)
  2. translate word for word (Académie Française: French Academy)
  3. transcribe the foreign expression, adding a TL explanation if necessary (croissant: croissant – needs no explanation)
  4. create a neologism: a) a literal translation / calque (université du troisième age: university of the third age) b) naturalization (informatique: informatics) c) use existing naturalization (départment: department);
  5. use an existing naturalization (which may be felt to be a native TL expression) (département: department,

Number 1 is functional equivalence, number 2 is formal equivalence.

Thus one could translate le Conseil des ministres as the Cabinet – to translate it as the Council of Ministers would have no equivalent in British culture and would conflict with the English title of the decision-making body of the European Community.

It’s for every translator to decide which type of translation works in English – in any case, many translations of terms have become standard now. I was surprised at the suggestion that a civil-law lawyer might be translated as barrister or solicitor, depending on their current role, because for me the terms are too specific to the English divided profession. Weston does discuss this at length. He seems inclined to accept barrister as a generic term. Discussing how to translate avocat (p. 103), Weston finds that the differences “are not such as to preclude the trnaslation ‘barrister’, however. At the same time, though, it should be noted that, just as many international organizations have official titles in more than one language, so European Community barristers, who are now allowed to practise in any member State, must use only their original official title (e.g. avocat, Rechtsanwalt, barrister), not a translation.”

When I wanted to use this list in teaching, I tried to replace the French examples by German ones, but it didn’t work very well. If you translate Kabinett as Cabinet, I suppose you have both formal and functional equivalence. But still it seemed a useful way of thinking about terminology – not that legal translation consists solely of terminology.

If I were to encounter the word Rechtsanwalt to translate for the first time today, I would have a number of dictionaries to consult and examples to consider. I probably wouldn’t have the time to research in great detail the precise differences not only between Rechtsanwalt and Notar, but between solicitor, barrister, attorney, lawyer, attorney-at-law. As Weston writes, “In a court context, avocat (de la défense) will often be translated as ‘counsel for the defence)'”. But I would be thinking: is this close enough functionally? would it confuse the English reader? how much support does the rest of the text provide to the intended meaning? how important is a precise rendering of this term in this particular text? who is going to read it? (my texts are never intended specifically for England and Wales, but for a number of readers, some of whom aren’t even in common law systems).

I agree with Malcolm Harvey on this (A Beginner’s Course in Legal Translation: the Case of Culture-bound Terms)

Malcolm Harvey Université Lumière Lyon 2, France


Authors are divided over the merits of this technique: Weston describes it as the ‘ideal method of translation’ (1991:23), whereas Sarcevic claims it is ‘misleading and should be avoided in the translation of laws’ (1985:131). Experience shows that learners tend to overuse this device, no doubt because it is aesthetically satisfying and allows them to apply newly-acquired knowledge about the TL system. This can cause them to ignore potential dangers: for instance, the term tribunal d’instance can produce anomalies such as ‘Magistrates’ Court’ or ‘County Court’, which sound distinctly odd in the French context. This temptation is shared by dictionaries and vocabulary books, which sometimes offer incongruous or erroneous equivalencies such as Garde des Sceaux = ‘Lord Chancellor’; avocat général = ‘Queen’s Counsel’ (Gusdorf 1993:85).

Apprentice translators should double-check both denotation and connotation before resorting to a functional equivalent.

This technique is appropriate for the translation of texts intended for the lay reader (novels, general newspaper articles, political speeches etc.) in contexts where scrupulous accuracy is less important than fluency and clarity. However, in a document intended for lawyers, the technique can be misleading. 

TranslationTalk: rotation curation account on Twitter

Readers probably know about Rotation Curation on Twitter (#rocur) – accounts where the person tweeting (curator) changes every week. If not, there is more in Wikipedia at Rotation Curation.

The account is usually linked to a place, as in I am Germany, but there is now a TranslationTalk account, and this week it has been curated by Paula Arturo, an Argentinian legal translator and lawyer – website translatinglawyers.com.

There are a couple of points raised by Paula this week that I would like to take up, and that will mean blog posts – I have written a couple of replies on Twitter, but I don’t feel they lead to a multi-person discussion and then they disappear into the ether.

I find it hard to follow long topics on Twitter because I don’t log in often enough to catch up with everyone I am following. Does anyone? So even if a tweet is presented as a thread, it still alternates with non-threads where the curator has a sense of continuity but many readers may not. There is an archive of TranslationTalk tweets here. This is helpful but also illustrates how broken-up the tweets are.

Using CAT tools for translation

I’ve been using computer-aided technology for translation since 1998. I use Transit, currently TransitNXT, from STAR. It’s a very good program and has many excellent features I am too lazy to learn about. It is also much hated by many translators. Anyway, it has helped my legal translation in many ways, but it has never saved time. Over the years I have often heard that such tools are useless for legal translation, but that was just something said by people who had no idea what they were talking about. My CAT tool lets me see source and target text at the same time and links to all the terminology I have stored (the STAR terminology database, Termstar, is the best I know).

Percy Balemans has a post on her blog in which she has gone to the effort of describing all the reasons she likes CAT tools (post dated February 2013 but still relevant today), so I am linking it here and can save myself the effort: The usefulness of CAT tools.https://pbtranslations.wordpress.com/2013/02/11/the-usefulness-of-cat-tools/

Austrian Civil Code explained

As mentioned by my commenter AMM under the last entry (thanks, Adrian), a team at Graz University are working on putting the ABGB into language which is easier to understand.

The Austrian Civil Code dates from 1811, and parts of it have not been changed since then, while other parts have been updated in rather formal language.

The ABGB (Allgemeines bürgerliches Gesetzbuch für die gesammten deutschen Erbländer der Oesterreichischen Monarchie) can be found here.The Graz project is online.

And here is an example showing a useful discussion of the language aspects of the existing text in sections 285 et seq.



Definitionen/Einteilungen von Sachen:





−  zT etwas willkürlich (Bedeutung hier oft noch nicht zu erkennen)
−  später Wichtiges fehlt, so zB die vertretbare Sache, die in § 983 (Darlehen) vorkommt, oder die verkehrsfähige Sache; eine Ergänzung von § 291 wäre insofern wohl wünschenswert
−  etwas genauere Regelung der unbeweglichen Sachen fehlt, nicht einmal die Grundstücke werden in § 293 genannt

Rechtsverordnung – translating into English

How should one translate the German term Rechtsverordnung, which is often abridged as Verordnung, especially in titles, into English?

In this blog, I have discussed it in the context of Geoffrey Perrin’s 1988 article in Lebende Sprachen, ‘Rechtsverordnung’ and the Terminology of Legal Translation, which Geoffrey has allowed me to post on this site as a PDF. In the right-hand column of this site you can find the link under ‘Articles’.

It’s a complex issue with a lot of disclaimers, but I will start off by saying what usage I prefer in British English, and put any other thoughts later.

The question arises in connection with the German Institutsvergütungsverordnung (long form: Verordnung über die aufsichtsrechtlichen Anforderungen an Vergütungssysteme von Instituten), which has been translated as Remuneration Ordinance for Institutions  and more recently as Remuneration Regulation for Institutions.

Here goes:

Gesetze und (Rechts)verordnungen refers to primary and subordinate legislation. Verordnungen in the plural is best translated by subordinate legislation or delegated legislation. The problem arises when you need a countable singular term, especially part of a title.

The superordinate singular term is statutory instrument. But in the actual titles of statutory instruments in the UK, the term is usually order or regulations (note the plural). Here is a list of UK statutory instruments.

This is why I write order in a title if it is my choice what to write.

A term very widely used, especially by Germans, is ordinance. Perrin discusses that for England and Wales – it is a very archaic-sounding and obscure category. And in the USA it is usually a city ordinance, a form of local legislation (British by(e)-law). I don’t like the word ordinance, but I have seen it used so often that I do understand what it is supposed to mean: a form of delegated legislation.

I don’t like regulation (singular) either. It makes me think of the EU Verordnung – Regulation – a form of primary EU legislation, rather than a form of German subordinate legislation. But as I say, if the translator cites the German title or in some way makes clear that something different from the EU term is meant, I can’t see any harm being done.

I just set this out to explain my thinking.

Disclaimer 1: It may be that regulation works best in US English and (statutory) order doesn’t work at all. Geoffrey Perrin touches on that in his sixth footnote.

2. As long as the original German title is mentioned together with the translator’s English version, there should be no confusion.

3. If a published version exists entitled either Regulation or Ordinance, it may be advisable to stick to that, especially if the end user of the translation is likely to consult it.

4. As Perrin writes in  his article, the expectations of the reader of a translation are important. Hence legal translators always have to consider: is the translation primarily for the UK, the USA, Europe, or all those together. Legal translation for me is rarely about translating between two legal systems – there are always more involved.

Two translations of the Swiss Civil Code

I’m just going through old books and find a translation of the Law of Persons, Article 1-89bis of the Swiss Civil Code, by the Swiss-American Chamber of Commerce, by a team of seven translators, copyright 2006, which I bought for much bucks in the days before the Swiss government had an English version online (PDF).

Here’s the beginning without much comment, out of interest:

Original

  Art. 1 A. Anwendung des Rechts

A. Anwendung des Rechts

1 Das Gesetz findet auf alle Rechtsfragen Anwendung, für die es nach Wortlaut oder Auslegung eine Bestimmung enthält.

2 Kann dem Gesetz keine Vorschrift entnommen werden, so soll das Gericht1nach Gewohnheitsrecht und, wo auch ein solches fehlt, nach der Regel entscheiden, die es als Gesetzgeber aufstellen würde.

3 Es folgt dabei bewährter Lehre und Überlieferung.


1 Ausdruck gemäss Ziff. I 1 des BG vom 26. Juni 1998, in Kraft seit 1. Jan. 2000 (AS 19991118; BBl 1996 I 1). Diese Änd. ist im ganzen Erlass berücksichtigt.

Art. 2 B. Inhalt der Rechtsverhältnisse / I. Handeln nach Treu und Glauben

B. Inhalt der Rechtsverhältnisse

I. Handeln nach Treu und Glauben

1 Jedermann hat in der Ausübung seiner Rechte und in der Erfüllung seiner Pflichten nach Treu und Glauben zu handeln.

2 Der offenbare Missbrauch eines Rechtes findet keinen Rechtsschutz.

Swiss-American Chamber of Commerce version

Art. 1

Application of the law

The law shall apply to all legal questions that are covered, according to wording or interpretation, by one of the provisions thereof.

In the absence of a provision of law, the judge shall decide according to customary law and, in the absence of such customary law, according to the rule he would establish as a legislator.

In this regard, he shall follow established doctrine and tradition.

Art. 2

Content of legal relationships – Acting in good faith. Good faith

Each person shall be required to exercise his rights and fulfill his duties in good faith.

The manifest abuse of a right shall not be protected by law.

Online version at admin.ch

Art. 1

Application of the law

1 The law applies according to its wording or interpretation to all legal questions for which it contains a provision.

2 In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator.

3 In doing so, the court shall follow established doctrine and case law.

Art. 2

Scope and limits of legal relationships – Acting in good faith

1 Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations.

2 The manifest abuse of a right is not protected by law.

The comparison is quite interesting. Both versions are acceptable but one might translate differently in some places.

I prefer ‘in accordance with’ to ‘according to’ (which is a trivial matter), but why does the online version translate Überlieferung as ‘case law’? The court (rather than judge) as legislator – for Gesetzgeber I tend to write legislature.

I prefer ‘to perform his duties’ to ‘fulfil’ (‘fulfill’ is the US spelling) and ‘obligations’. ‘hat…nach Treu und Glauben zu handeln’ – one version has ‘must act’ and the other has ‘shall be required to…’.I would have thought ‘shall’ would be OK here – sometimes it is too strong for ‘hat…zu’.