Changes in legal terminology

If a legal concept changes slightly, a new term may be introduced to replace the old.

For instance:
enduring power of attorney (EPA) up till September 2007
lasting power of attorney (LPA) from October 2007

These are the common powers of attorney you might take out for an aged parent while they are still compos mentis and have registered later. There are definite differences so the distinction is necessary.

But what about family-law terms like
custody > residence
access > contact

See John Bolch, A matter of terminology:

Perhaps the best known example – one that still catches out lay people (and some older lawyers) – is the new names given to the two main types of children’s order by the Children Act 1989. Out went the old terms ‘custody’ (which, incidentally, is still understood throughout the English-speaking world) and ‘access’. In their place came ‘residence’ and ‘contact’. I acknowledge that ‘residence’ has a different meaning to ‘custody’, but is a ‘contact order’ really that different to what an ‘access order’ used to be?

See that article for more on: child arrangement, ancillary relief > financial remedy, Divorce Registry > Principal Registry, registrar > district judge, child mnaintenance > child support > child maintenance, absent parent/person with care > non-resident parent/parent with care > paying parent/ receiving parent > parent who pays/parent who receives

As John writes about custody and access, these are terms familiar throughout the English-speaking world. It’s all quite a pain for translators out of English, and also into English, especially if they don’t translate from German for one specific jurisdiction.

In a later post, also on Marilyn Stowe’s family law blog, (Are the terms ‘custody’ and ‘access’ really degrading?). John Bolch writes that the terms custody and access are still sometimes used but some regard them as degrading. This sounds as if the change in terminology was regarded as a move towards PC.

My personal bugbear is the replacement in England of plaintiff by claimant. There was no change of meaning that might have justified this: it was purely done because the hoi polloi were not expected to understand it. But the term remains used in Ireland and hence in the EU, in the USA, Canada, Australia, New Zealand and elsewhere. When I translate into English for German clients my translations are not just for England so I always write plaintiff.

Changing terminology

In another mailing list last week, I was struck by the question of how to translate the term divorce decree into German.

One would normally write Scheidungsurteil, but recently the term Urteil has been removed from German divorce law, apparently because it makes divorce sound like a fight (haha!). Indeed, all family law cases now end in a Beschluss, which sounds more harmless, allegedly.

See Es gibt keine Scheidungsurteile mehr in Thomas von der Wehl’s blog.

Wir haben nur durch das neue FamFG eine neue Begrifflichkeit erhalten. Aus einem schwer nachvollziehbaren Grunde hat der Gesetzgeber den Begriff Scheidungsurteil abgeschafft und durch den Begriff Scheidungsbeschluss ersetzt. Er wollte damit ausdrücken, dass es sich bei Scheidungsverfahren um angeblich weniger streitige Verfahren handelt und dieses Weniger an Streit mit dem etwas geringerwertigen Begriff “Beschluss” kenntlich machen. Ich halte das für Unsinn, zumal die Vermutung, Scheidungsverfahren seien weniger weniger streitige Verfahren, häufig falsch ist.

So the colleague’s question was: do we change the translated term to suit new German practice? The answer on all sides was ‘no’.

And yet when English law removed the term plaintiff and replaced it by claimant, translators in the UK followed suit, even though the term plaintiff is used in Ireland and thus in the EU, and also in the USA and other common-law jurisdictions. And similarly, in family law, it’s common to use contact instead of access in translations, just because the term has changed in English law.

Of course one has to consider how close the concepts are in German law and English law. And also whether the audience is from one specific jurisdiction – it’s statistically more sensible to use plaintiff unless the readership are purely from the UK.

I’m trying to think of other cases where changes in terminology might affect translations. One area is the introduction of ‘politically correct’ usage, which may occur in the USA and UK before it does in Germany. Should a German institution use non-sexist language in its English documentation even if it doesn’t in German? I think so.

The names of courts, court personnel and lawyers often change. So do forms of companies and partnerships.

Of course, many concepts are not close and the target language needs a definition. It’s only terms like Scheidungsurteil and plaintiff that are close enough that one wonders whether to follow changes in the target language.

 

Inter alia et al.

Inter alia

This was a recent mailing-list discussion.

We are advised nowadays to avoid Latin expressions, even in legal English. When avoiding inter alia, we are widely advised to use among others, but this doesn’t always work.

inter alia: among other things
inter alios: among others/among other persons

Actually, among others sometimes works in a wider sense, but not always.

Thus, here it works, as ‘others’ is taken to refer back to ‘factors’:

The survey, carried out by The Economist, rates locations based on factors such as stability, healthcare and infrastructure, among others.

and

here it doesn’t work:

Museum collections have been enriched with video records. Registered accounts are devoted to, among others, functioning of ghettos in Lublin, grounds of the Majdanek camp after its liquidation, and post-war fates of a former prisoner of KL Lublin.

These are often non-native English texts, but they may have taken their advice from native sources.

There is a problem that Bryan Garner, who edits Black’s Dictionary, does say in his book on style that
‘among others’ refers to both people and things. This is not the view of Mellinkoff or of The Cambridge Guide to English Usage or of Thornton on Legislative Drafting – all agree with me that ‘among/amongst others’ means people.

One of my colleagues quoted a slightly edited example from a search engine as a sentence where ‘among other things’ would not work, he felt:

For example, the Transparency and the Markets in Financial Instruments Directives, among others, have come into effect since 2003.

Among/amongst and while/whilst

We also had an argument about this. Some don’t like the use of amongst and whilst, which are more common in BE than in AmE, but even in BE less common than the forms without -st on the end.

I don’t think it’s relevant to us BE speakers that it sounds pretentious for Americans to use those forms, although we may think about our target audience if they are Americans. My target audience is often a variety of native and non-native speakers of English in Europe, some of whom are going to be from the USA, so I tend to use double inverted commas and I suppose I should avoid ‘amongst’. I certainly avoid the verb ‘to undertake’ in a contract because I believe, rightly or wrongly, that Americans find it odd. A colleague in Vienna (no, not you, Adrian) once got very hot under the collar at the very idea I might pander to Americans, but there it is.

But as for the use of ‘whilst’ in BE – I hate it! I wonder why. I don’t hate ‘amongst’. I think I am being snobbish here. I associate it with people who aren’t very well educated. But I haven’t found that confirmed.

Wikipedia:

Some publications on both sides of the Atlantic disapprove of whilst in their style guides (along with “amidst” and “amongst”); for example:

Times Online Style Guide: “while (not whilst)”
Guardian Style Guide: “while not whilst”
Hansard: the Canadian Parliament record: “while not whilst”

More Latin

I have mentioned before that lawyers’ Latin differs from jurisdiction to jurisdiction. You can have a nice library of glossaries of legal Latin for England and Wales, Scotland, the USA, Germany, Austria and Switzerland.

There’s been a move to reduce Latin and for legal texts to be comprehensible to the public for some years now, famously in Woolf’s Civil Procedure Rules in 1998. But not every intended simplification really works.

A 2004 article in the Law Gazette, Language Barrier, is useful. Quoting David Ibbetson, professor of civil law at Cambridge University:

‘Sometimes Latin phrases were used as a sort of shorthand for technical terms which could not be translated into simple English,’ he says.

‘Actus reus, for example, doesn’t simply mean guilty act, and to try to translate it out of the Latin into comprehensible English would risk giving the impression that it had an ordinary language certainty.

‘So we do have to be careful not to try to achieve a spurious comprehensibility at the expense of accuracy.

That said, there can be no excuse for retaining Latin terminology simply because putting it in English would demystify the whole law – like insisting on singing operas in German because the words sound so silly in translation.’

Mutatis mutandis

Finally, one of the expressions found useful is Latin, is mutatis mutandis. Note that this has been replaced in English legislation by ‘with the necessary modifications. Here’s a Google search:

“with the necessary modifications” site:www.legislation.gov.uk

This gets 30,000 ghits, whereas ‘mutatis mutandis’ gets 220.

Gesetzesvorbehalt

There’s a term in German constitutional law, Gesetzesvorbehalt, literally (reservation/requirement of a statute).

On Legally Yours, Rob Lunn discusses the equivalent Spanish concept. How to translate “reserva de ley” into English (using a descriptive strategy).

In my database I find a suggestion to translate the German term as ‘constitutional requirement of the specific enactment of a statute’ (because secondary legislation is not enough).

It is apparently sometimes translated as ‘legal reservation’ or ‘reservation of law’, which doesn’t convey the meaning at all.

The word Vorbehalt is often a problem. If you translate it as ‘reservation’, you are using a word that’s less usual in legal English than Vorbehalt is in legal German.

I prefer ‘requirement’.

There’s a discussion of the term on LEO (quite useful in parts, but I particularly enjoyed the comment ‘I actually discussed that topic with a common lawyer. He completely ignored that concept’ with its interesting use of ‘ignored’).

I’ve apparently had to translate quite a few words with ‘Vorbehalt’ as part: Änderungsvorbehalt, Beamtenvorbehalt/Funktionsvorbehalt, Eigentumsvorbehalt (reservation/retention of title), Einwilligungsvorbehalt, Erlaubnisvorbehalt, Identitätsvorbehalt, Kontokorrentvorbehalt, Liefervorbehalt, Parlamentsvorbehalt (another term for Gesetzesvorbehalt), Progressionsvorbehalt, and several more.

I can’t quite agree with Rob that this is such a culture-specific term (see Things I learnt from a journo about translating culture-specific terms: (1) Description trumps linguistic solutions), but OK, it is not a concept that applies to UK constitutional law. I would definitely use the definition here, and I might not add the German in brackets.

LATER NOTE: A query on a mailing list relates to Saldohaftungvorbehalt, as in ‘ Eigentumsvorbehalt
Bis zur vollständigen Bezahlungen bleiben alle gelieferten Waren unser Eigentum (Saldohaftungsvorbehalt).’

I would suggest ‘liability for balance’.

Unterlassungsgläubiger

I was wondering what to do with Unterlassungsgläubiger in the case of a declaration of discontinuance. If it had been Unterlassungsschuldner, I could have used declarant, and I was tending here to the other party. But as usual I wondered what others had done.

Someone on Linguee had gone for ‘the party asserting the demand for restraint’, which is correct if nothing else.

There was no ProZ discussion but one on LEO looking for both terms. Someone there suggested respondent and claimant and seemed unfamiliar with German legal terminology:

Da formuliert der Herr Anwalt schon sehr tendenziös. Er stempelt ohne jedes Gerichtsurteil jemanden für alle Zukunft (“zukünftig”) als “Schuldner” ab, obwohl jemand, der etwas unterlassen soll, per definitionem niemandem etwas schuldet. Wahrscheinlich ist die Erklärung gar nicht so lange, dass man die Firmenbezeichnungen immer wieder in Kurzform wiederholen müsste.

Sometimes obligor works for Schuldner, the normal term for a who owes a duty under civil law, but often it isn’t natural English and that depends on the purpose of the text.

There was also a link to a list of terminology on a 2003 translator’s blog:

You might find this link useful:

http://thornton.log.ag/

Scroll down to The section Wettbewerbsrecht Terminolgie I
HTH

Goodness me! that takes me back to CompuServe again – I recognize the technical translator’s name and location. I take the liberty of quoting a whole post from this presumably defunct blog:

Competition Law
Terminology I

In the short time that I have been busying myself with “Disclaimers” and “Cease-and-Desist orders”, I have come across a number of terms that, although I had no difficulty in understanding what they meant (at least well enough for a non-lawyer to get an idea of what it was all about, that is), nevertheless, I really had no idea of the accepted equivalents in British or American English (they are very likely not to be the same).

This is typical of what can happen to a technical translator from time to time. He/she gets the job of translating some boring machine manual, takes a quick look through before accepting but fails to notice that the customer has slipped in a few passages that are well outside his/her own area of expertise and there is nothing to be done about it but try to get help from somebody with an idea on the subject.

It took me well over my self-allotted 30 minutes weblog time today just to put the list together. I estimate that tracking down acceptable equivalents will take at least ten or twenty times as long! I am beginning to get a feeling that for a spare-time blogger, one or two terms per day would be quite enough to track down and document! In normal translation work, of course, while it is usual to make up a terminology list, it is not usual to do it in public! I am going to see what kind of a mess I can make of this. (It is now 2 a.m. again!)

Sitz der Gesellschaft: company seat

I seem never to have dealt with this problem in the blog. So I’ll quote myself on ProZ, where you can see others’ opinions too:

seat

Explanation:
I prefer seat, because it is understood in English and doesn’t give the incorrect impression that it is a street address (unlike ‘registered office’). It is unpopular with some translators because it is perceived as ‘translatorese’, but in legal translation you can’t just take the nearest potential equivalent just because it sounds English – because, after all, we’re talking about German law, not English law.
I agree that ‘domicile’ is a possibility, but I don’t think it’s so widely understood (and a German domicile is a city, but an English domicile is a jurisdiction, such as Germany or England and Wales or California). ‘Corporate headquarters’ seems a slightly different context to me.

Here’s another one, where the asker said:

Please do not reply with seat. It sounds very awkward to me.
I am translating it as headquarters but wondering why I can’t say location.

Don’t you just love it when someone tells you what answer they don’t want? And even Beate Luetzebaeck hates seat.

Actually, the term seat is not so uncommon in company-law contexts, for instance in seat theory (PDF); Sitztheorie).

At present, there are two contrasting conflict of law theories as regards the recognition of foreign
legal persons: the ‘incorporation’ theory and the ‘real seat’ theory. The ‘real seat’ theory probably
dates back to the middle of the nineteenth century. According to this theory, the law of the country
where the company has its ‘real’ seat (i.e. its management and control centre) is the law applicable to
company relationships.

People may not like the word seat, but registered office
strikes a really odd chord for me, since a registered office is an address, for instance an address for service, whereas Sitz is a town, for example the courts of that town.

The German text might be:

Sitz der Gesellschaft ist Hamburg.

You can’t write: The company’s registered office is Hamburg.

But you might write: The company’s registered office is in Hamburg.

Continental law/Kontinentaleuropäisches Recht

Like common law (of which more shortly), civil law is a term with more than one meaning.

1. civil law in contrast to criminal law: private law (Zivilrecht)

2. civil law in contrast to common law: a legal system based on Roman law (ius civilis – römisches Recht, kontinentaleuropäisches Recht)

The second meaning can confuse people who’ve never heard of it. One can call it Roman law, but that’s confusing too, because it might mean the law of ancient Rome rather than that of systems based on it.

Hence we have the relatively rare term continental law. It has the advantage of being comprehensible.

Now, Germany and France recently joined together in the ongoing campaign to show the world that civil law is best, and everyone ought to come to the German and French courts and draft German and French contracts and everything will be better.

There was an article to this effect in the FAZ on February 1.

Verglichen mit dem angelsächsischen Recht leidet das kontinentaleuropäische Recht unter einem Wahrnehmungsproblem: In den letzten 20 Jahren wurde es immer wieder als unflexibel, bürokratisch, wirtschaftsfeindlich und teuer dargestellt. Zu Unrecht, wie sich bei näherer Betrachtung zeigt. Die juristischen Berufsorganisationen Deutschlands und Frankreichs haben daher eine „Initiative für kontinentaleuropäisches Recht“ gegründet.

(Compared with common law, continental law suffers from a problem of perception: in the past twenty years it has repeatedly been described as inflexible, bureaucratic, inimical to business and expensive. Wrongly, as a closer look shows. The professional lawyers’ organizations of Germany and France have therefore initiated an ‘Initiative for Continental Law’.)

Note the use of angelsächsisches Recht for common law. I recall an employer wanting to describe me as an expert in Anglo-Saxon law, but I felt too young for it.

The arguments for continental law as opposed to common law appear compelling (in view of the authors –

Henri Lachmann (Präsident der Fondation pour le droit continental), Rechtsanwalt Axel C. Filges (Präsident der Bundesrechtsanwaltskammer), Notar Dr. Tilman Götte (Präsident der Bundesnotarkammer), Rechtsanwalt Prof. Dr. Wolfgang Ewer (Präsident des Deutschen Anwaltvereins), Notar Dr. Oliver Vossius (Präsident des Deutschen Notarvereins), Oberstaatsanwalt Christoph Frank (Vorsitzender des Deutschen Richterbundes)

they would say that, wouldn’t they?):

codified, so law is easy to find
application is predictable
procedural law is efficient and proceedings are cheap
good at protecting property
hmm – number 5 is ‘Nicht zuletzt ist kontinentales Recht ein Recht der Freiheit. Effizient, kostengünstig, sicher’ – a law of freedom? I think we’re getting into advertising language here.

The article expands on this. Thus if you use the common law, you have to burrow your way through the decisions of many centuries, whereas continental law, with its codes, gives you a ‘checklist’ (a new way of looking at the BGB, or do they mean the French, Austrian or Swiss civil codes?). I take the point about contracts backed up by codified law being simpler and shorter. And about a reliable system of registration.

What’s more, the article continues, continental law cannot be reduced to economics. It has a political mission.

Unser bürgerliches Recht haben sich Bürger gegen absolutistische Fürsten und Feudalherren in Jahrhunderten erkämpft.

I think the French got the upper hand here!

This initiative has a brochure, and I downloaded it in German and English at www.kontinentalesrecht.de. I expect there’s a French version too. This is the related site.

One exciting bit of the brochure is the map of the world. It shows, in mustard yellow, ‘Continental law and mixed legal systems strongly influenced by continental law’ and in blue ‘Other legal systems’. That blue almost fades into the sea. We can see how huge the continental law countries are – they include Louisiana and Quebec. Greenland is pretty big. Then there’s the whole of Russia, China, and nearly all of South America – all great places to get your simple legal contracts backed up by a reliable code, of course. It says ‘Continental law is the prevailing law for two-thirds of the world’s population.’

There is more to be said on this, of course. Probably a big reason for the ‘Dornröschenschlaf’ (it’s a Sleeping Beauty) of continental law is the lack of a common language that isn’t English.

Legal entity/Legaleinheit

I wrote about legal entity earlier.

Now Professor Noack of Unternehmensrechtliche Notizen points out that the term Legaleinheit is creeping into German.

Google nennt immerhin ca. 1 600 Treffer, der Duden kennt das Wort noch nicht, ebensowenig die juristischen Lehrbücher. Mir ist der Begriff auch erst so richtig aufgefallen, als ich die Einladung zur außerordentlichen HV der Deutschen Telekom AG las: “Zur Steigerung der Wettbewerbsfähigkeit sollen T-HOME und T-MOBILE in Deutschland in einer Legaleinheit zusammengeführt werden.” Dann wird erläutert, dass Vermögen im Wege der Ausgliederung auf eine GmbH übertragen werden soll.

(There are c. 1,600 ghits; term is not in Duden or German law textbooks. In an invitation to an extrarodinary general meeting of Deutsche Telekom, it is used to refer to a GmbH after a merger).

It seems to me that they could often use Gesellschaft to refer to a new association of persons. Gesellschaft means either company (US corporation) or partnership. Legal entity works quite well for this in English, or it would if people didn’t so often use it to mean a company (legal person).

On the whole, the term seems to be used by people who don’t quite understand what they’re writing:

Die LWSG existiert weiter, allerdings mehr oder weniger nur noch auf dem Papier als so genannte “Legal-Einheit”, das heißt als juristische Firma, aber ohne eigene Geschäftsführung.

(This relates to Evonik, who seem keen on the term elsewhere too).

Definitions found on the Web:
rechtliche Person
rechtlich eigenständiges Unternehmen

Refresher/Sonderhonorar für Barrister

The Oxford English Dictionary has a word-of-the-day service. Today’s word is refresher, and one meaning is the one that sprang to mind immediately:

Dietl-Lorenz:
refresher Sonderhonorar für den Anwalt (Br barrister) (bei längerer Verhandlungsdauer)

Romain
refresher außerordentliche Anwaltsgebühr (bei langandauerndem Prozess bzw. mehrtägiger Verhandlung)

OED:

2. Law.

a. An extra fee paid to counsel when a case lasts longer than originally expected or allowed for.
1796 Attorney & Agent’s New Table of Costs (ed. 5) 222 Refresher to Mr. Bearcroft. 1831 F. REYNOLDS Playwright’s Adventures vi. 108 He also knew that barristers..can only be kept alive by refreshers. 1881 Times 19 Feb. 10/3 It is therefore recommended that daily refreshers should be abolished, as being one of the principal causes of the undue lengthening of trials. 1933 H. ALLEN Anthony Adverse xlix. 740 My retainer is reasonable, my refreshers modest, my reputation unblemished. 1991 Investors Chron. 26 July 68/3 The refreshers or daily fees will never be less than £1,000.

{dag}b. A revised brief. Obs. rare.
1852 T. DE QUINCEY Sketch from Childhood in Hogg’s Instructor 8 2/1 Every fortnight, or so, I took care that he should rec

eive a ‘refresher’, as lawyers call it{em}a new and revised brief{em}memorialising my pretensions.

Marital acquest/Zugewinn

In the recent entry on the Mills-McCartney divorce arrangements, I quoted this:

This is not a case where the principle of sharing of the “marital acquest” is engaged at all.

This term was new to me. It seems a good solution for Zugewinn in German law: the property acquired by both spouses from the date of marriage on, which may be divided fifty-fifty in Germany if so agreed or in default of a contract. The situation in England is different, but still it can be necessary to talk about this amount as one of the factors.

I find acquest in the OED:

3. Law. Property gained by purchase, or gift, or otherwise than by inheritance.

Used in this sense in French and in jurisprudence, it says in the etymology.

Google reveals 112 uses, and I think it must recently have been taken up. Probably it was one of the recent big cases where the concept needed to be discussed that used it and was widely reported.
Here‘s an example:

Increasingly on divorce (and the same principles are likely to apply on the dissolution of civil partnerships) the court is interested in ascertaining what has been described as the ‘marital acquest’, that is, the assets accumulated by the parties during their marriage.

I see it was quoted in Miller v. Miller.

This does not mean that, when exercising his discretion, a judge in this country must treat all property in the same way. The statute requires the court to have regard to all the circumstances of the case. One of the circumstances is that there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift, sometimes called the marital acquest but more usually the matrimonial property, and (2) other property.

Zugewinn is usually translated as accrued gains or surplus.