German Civil Code – annotated translation in the pipeline

In a recent mailing list discussion, a colleague queried the online translation of the German Civil Code, because they thought that ‘charge’ meant to charge a person with a criminal offence, whereas in the context used, it meant ‘encumber’ – quite correctly. This is a good illustration of the uncertainty of some translators when faced with legal texts!

There are a large number of translations of statutes into English available online, many of them ‘official’, whatever that means. Whether they have serious problems or not I usually only notice if I happen to be dealing with a specific part of a statute and especially if Iwant to use the terminology of the translation so my customer can consult the whole thing. I have definitely recorded complaints about some of these translations, as readers of this blog will know.

It seems to me that a particular problem with the Civil Code is that a lot of vocabulary is used consistently throughout, even where in everyday German one might vary it. I think the verbs relating to real and personal property are the same, for example. But many translators simply find a translation and follow it slavishly without considering its reliability (because they aren’t in a position to judge it). But a translation into English that closely follows the German wording may not work as well as a more discursive one.

That’s when I pointed out that a really useful BGB translation would have footnotes.

Now it seems that Professor Gerhard Dannemann and Reiner Schulze are publishing such a version.

. It should be out in July and will cost 280 euros. Intended for German and British lawyers.

In its first edition, this article-by-article commentary covers books 1 to 3 of the code, i. e. General Part, Law of Obligations, Law of Things. The commentary takes into account all the changes up to December 2018 and provides a consolidated version of the BGB.
The commentary of each article is headed by the current version of the article both in the German original and an English translation followed by a clearly and uniformly structured analysis of the provision. Focus is laid on the understanding of the meaning of the provision in the context of the code and the proper use of the terminology both in German and English. As the meaning of the BGB does not always follow from the wording of its provisions, especially if translated into another language, they need further explanation. Taking into account the origin of the BGB in 19th century Germany and the difficulties inherent in any legal translation, the proper use of terminology is the real challenge of the commentary.
Facing this challenge, the commentary meets the expectations both of German and foreign lawyers by providing the proper terminology and explanation in English to lawyers and translators and by offering a systematic overview on the BGB to lawyers who are not very familiar with the German civil law.

Professor Dannemann is responsible for the German Law Archive site and there are some bilingual BGB translations there.

ISO 20771 Legal translation – Requirements

There is a new standard for legal translation. I am not interested in acquiring a standard, in particular this one, but I do think it’s interesting what the committee who prepared the standard thought about legal translators.

It’s for individual legal translators but it seems the ATC (Association of Translation Companies) is considering selling packages to help people apply.

The new standard for individual legal translators has been widely reported. Legal translators are wondering if they will feel obliged to have it, what it will cost them in time and money, whether clients will require it and so on. I followed a webinar by the ATC on it. I honestly can’t see this standard going anywhere. The German authorities aren’t going to adopt it because they think that ISO 10771 with an appendix suffices.

The document can be bought for CHF 118 from iso.org. It can be bought as a PDF and downloaded.

Background can be found at Slator: Germany Rejects ISO Standard for Legal Translation, Experts Defend ISO Standard for Legal Translation.

So,I will pick out just a few things: There are definitions, incidentally, of check (source and target language, by the translator), revision (source and target language, by the reviser), review (only target language) and proofread (target language). Those are terms often confused. (Presumably dealt with in the earlier ISO for translators, 10771).

There are also definitions of authorized legal translator and lawyer linguist.

An authorized legal translator would include what is sometimes called a sworn translator in Germany. There are a number of terms used by the various Länder. So this is useful.

Note 1 to entry: Court or government body authorization is generally given on the basis of relevant national legislation, to translate specific documents used in judicial settings, by public authorities or as part of legal proceedings and to take part in legal proceedings in the capacity of an authorized legal translator.

Note 2 to entry: Depending on the national legislation or convention, an authorized legal translator may in some countries or regions also be referred to as a court-appointed translator, sworn translator, court authorized legal translator or a certified legal translator.

A lawyer linguist in this context sounds here like the way I have always understood it – a lawyer with language skills who makes a legal contribution to international legislation, for instance in the EU. Maybe not a practising lawyer, but there as a lawyer rather than a translator, in the main. Some of my colleagues who are qualified lawyers and translators and work as freelances call themselves lawyer linguists, I think to emphasize the fact that they are lawyers, which always impresses clients (as I know to my advantage), not that being a qualified lawyer makes you a competent translator.

person with legal background and linguistic competence who provides legislative linguistic advice

Note 1 to entry: The lawyer linguist can also provide advice within the context of bilingual or multilingual co-drafted legislation, and comparison services to ensure equivalency and consistency between different language versions of legislation.

Note 2 to entry: Depending on the custom or convention a lawyer linguist can in some countries or regions also be referred to as jurilinguist.

Note 3 to entry: A lawyer linguist can, from time to time, also translate, revise or review legal texts, provide advice on legal terminology, legal analysis, etc. 

 There follows a general description of legal translation. It looks rather inflated to me, or rather, the description would apply equally to technical, economics, medical or much other translation:

Given the highly specialist field, potential legal consequences of mistranslation, and formal and liability issues, legal translation requires specific competences and qualifications and a very professional approach from the specialist translators involved in providing the legal translation service. 

5.2 sets out the required qualifications. There are five possibilities of meeting the criteria. Most require at least three years’ experience in translating in the legal field. However, the last does not:

has obtained an officially recognized qualification as an authorized legal translator on the basis of relevant national requirements and regulations.

I am a sworn translator for the Bavarian courts, so presumably I would qualify even if I did not fit the other categories (not quite sure I do, as I have a Ph.D. in German and am qualified as a solicitor). But a person with this qualification, at the time I did it, did not have to have law as their special subject. The only nod towards work for the courts for translators whose main subject was technical or economics translation, for example, was a sort of gap-filling paper on the terminology of the German courts.

I’m skipping over large amounts of definitions of what legal translation consists of and all the stages the individual legal translator is responsible for.

One issue which has been questioned among translators relates to ‘signing off’.

6.7 Signing off and record keeping

In order to ensure full transparency and traceability when the translation is completed, even if there is no formal authorization requirement, the legal translator should sign off the translation as part of the deliverable in a manner agreed previously with the client or required by any other relevant agreements. This may, depending on the specific requirements or convention, include: electronic signature, signing or coding the document, file or TM segments, etc. If required to do so by the client, circumstances or appropriate agreements, the legal translator should provide a short written statement of the translator’s and the reviser’s qualifications, compliance of the translation with the relevant legal requirement and the source text.

NOTE Signing off and record keeping of legal translations can also be covered by regulations.

This seems a bit heavy but in its simplest form it is similar to the stamp and formula added to a certified German translation. It seems to me that the most important element of that is that the trnaslator is identified and can be traced.

Machine Translation and legal texts

Fabio Said has a good summary of the BDÜ conference last week – which I did not attend. – with an emphasis on the presentations dealing with legal translation.

Patrik Mustu, he reports, presented on English-to-German machine translation of legal texts, giving examples of places where DeepL was not precise enough. On the screen behind Mustu one can see the parties hereto rendered in various ways, for example die Parteien hierzu, and the best solution, die Vertragsparteien, which DeepL presumably did not deliver.

Translators are increasingly using DeepL – it’s possible to use the Pro version, which means your private texts are not imported by DeepL – but they need post-editing. This is all a bit outside my current experience but needs keeping an eye on.

In the old days, when MT was rule-based and not statistical, it was recommended to use an MT program in-house and adapt it to one’s texts. Can this be done now with problem terms mentioned (damages, equity, quantum meruit)? Just wondering.

The translator’s lot is not a happy one

May I have a word about … the translator’s unhappy lot. An article in The Guardian by Jonathan Bouquet – thanks to Paul Appleyard for linking it on Twitter. And pointing out that the comments are probably the most interesting bit!

I’d never given much thought to the travails of translators, but a recent email from a reader changed all that.
It kicks off: “In addition, for Designated Window Personnel, purchases or sales of Company Securities made pursuant to, and in compliance with, a written plan that meets the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (a “Trading Plan”), may be made without restriction to any particular period provided that (i) the Trading Plan was established in good faith, in compliance with the requirements of Rule 10b5-1…”
I think you get the drift. The sentence continues for another 245 words. And the translator’s lament? He had to render this brain shredder into Welsh.

My first reaction is that this is the kind of legalese the equivalent of which in German I deal with all the time. And the translator into Welsh may be a generalist who is not used to legal texts.

Of course, translators between German and English often specialize, but someone who translates solely between English and Welsh may be obliged to take a wide range of topics, if they are trying to make a living. I feel sorry for interpreters too – constantly performing at high speed on a variety of topics they will not have time to absorb.

The rest of the article segues into a consideration of business jargon, as if that were the same thing!

To quote one comment (weetam):

The basic problem isn’t the turgid text to translate. What happened is that a generic translator was trying to translate a highly specialist text. 
This translator didn’t “have to” translate it into Welsh, but was rather offered work that he/she should have turned down and then accepted it anyway. 
There are specialist translators who deal with this kind of stuff day-in, day-out and can translate something like this in their sleep. Building up those skills takes many years of training and experience, which makes specialist legal translators more expensive. This translator then turns up and undercuts these high rates, and then pretends it’s someone else’s fault if he/she can’t do the job. 
Get the picture? Welcome to our world!

Some of the comments give advice on how to handle difficult subject-matter. One reports that with contract language you just take it bit by bit, whereas translating a description of a staircase was harder, with all the unfamiliar technical language. Another writes:

The challenge with translations, whether it be legal text or medical disclaimers, is that the translator accepting the assignment is a trained linguist and in most cases not expert in the subject he/she has to translate. 
I have had an assignment/project once where a complete material master (parts) of a blast furnace need to be translated. I can share with you that I never realized how many different type screws, nuts, bolts and ball bearers there were all with there own unique technical description. 

I suppose I’m not a trained linguist. I sell myself on the basis that I am a qualified solicitor. But I learnt about law and legal translation by finding myself teaching it, and attending the classes of colleagues who were German lawyers, and as for deciphering really complex German, reading lots of secondary literature when I did my Ph.D. on German literature was a big help, and so perhaps was doing A Level Latin. And that’s what I love about legal translation – deciphering sentences and intentions. Most people who see the kind of language I like to translate would react like Jonathan Bouquet and his ‘travails’. Travail as work, not travails as suffering.

P.S. I forgot to add, what was in my mind, that researching unfamiliar areas takes a long time, and the translator needs to have an idea of whether the pay for this is worth it.

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’.

 

Thormann/Hausbrandt: Rechtssprache – book on legal German

Isabelle Thormann and Jana Hausbrandt, Rechtssprache – klar und verständlich für Dolmetscher, Übersetzer, Germanisten und andere Nichtjuristen, BDÜ Fachverlag 2016 – 446 pp. plus keyword index

Let me start by saying that this is a very full and thorough book with a variety of contents and I think anyone dealing with legal German will like to have it. It is intended for those who know nothing about legal German, so experienced legal translators will not need it, perhaps unless like me they are interested in how legal German is taught and explained. The authors have been running seminars on legal German for several years now, so they know what problems non-lawyers have in practice. (The BDÜ runs webinars on the subject by the authors too).

If you are a BDÜ member, you can consult and search online a library of all the books you bought from this publisher (provided the authors agreed to electronic searchng, including this one, together with past issues of MDÜ. I don’t know if it works for non-BDÜ members. I don’t think you will want to use the book as a dictionary – it would make more sense to work through it first – but electronic searching is very useful.

1. Who is it for?
The authors describe the book as both a reference work and a textbook, and they say it is ‘also’ suitable to prepare for the exam ‘Nachweis grundlegender Kenntnisse der deutschen Rechtssprache’, which many German Länder require court interpreters and translators to pass. In Bavaria the equivalent is or was part of the exam for court interpreters and translators called ‘Gerichts- und Behördenterminologie’. In that connection there is another book from that publisher:
Arbeitsbuch zur Gerichts- und Behördenterminologie, Auflage 2013
Autor: Ulrich Daum, Ramón Hansmeyer

The fact is that in order to pass an exam in Bavaria to be a court interpreter or translator, you do not have to choose law as your main subject, so there are a lot of candidates who ought to know something about legal German and fortunately training in this is increasing. So the legal German in these books is not the language of contracts or intellectual property or even judgments. But it’s still useful stuff.

But the subtitle adds ‘Germanists and other non-lawyers’. And parts of the book are said to be particularly suitable for those with German as a foreign language:

DaF-Extras
Dieses Buch enthält Hinweise und Teile (z.B. das Kapital “Komische Wörter und Ausdrücke”), die besonders für solche Dolmetscher, Übersetzer und Jurastudenten konzipiert wurden, die Deutsch nicht als Muttersprache, sondern als Fremdsprache gelernt haben.

Does anyone else find this ‘komische Wörter’ a bit condescending? Let’s look at them. First comes a long section of words with a different meaning, like anklagen vs. verklagen vs. einklagen, or bestandskräftig vs. rechtskräftig, then come Vertraute Wörter mit anderer Bedeutung, Fachausdrücke der Rechtssprache, Lexikalische Besonderheiten der Verwaltungssprache and at last Komische Wörter und Ausdrücke. I’m not sure why a non-native speaker should be more surprised than a native speaker by abbedingen or einer Sache keinen Abbruch tun. But anyway, I’m quibbling – the contents of the book are very useful.

2. What’s in it?
You can find details of the book here, together with a PDF sample – click on Leseprobe. I would recommend downloading this as it has a full table of contents and you can see how very full it is. The aditional material alone is very useful, closing with police grades, occupations at court, and much else.
The main parts are 1. Characteristics of legal language (about 200 pages), 2 Legal terminology – actually an introduction to law (about 160 pages) and 3 – Appendix – Additional information and solutions to the exercises.

3. Exercises
There are execises, which seem to crop up rather unexpectedly (to me) in the first part. Thus for example:

Umwandlung eines Relativsatzes in eine Linksattribution.
Formulieren Sie die folgenden Sätze so um, dass der Relativsatz in Form einer Linksattribution ausgedrückt wird.
1. Die Verzögerung, die im November 2015 auf Grund der Klagebegründung entstand, war etwas anders als von Ihnen in Ihrem Schreiben dargestellt zustande gekommen.
Solution:
Die im November 2015 auf Grund der Klagebegründung entstandene Verzögerung war etwas anders als von Ihnen in Ihrem Schreiben dargesellt zustande gekommen.

I’m not sure what the point of these exercises is, but it looks as if the authors want to encourage more comprehensible legal language, perhaps even plain German, which includes converting sentences back and forth. The exercises probably useful to get a feel for legal German, although I wouldn’t have the patience to do 18 of them. I admit this kind of exercise was always very appealing to me as a teacher (I remember a set of sentences on hereinbefore and so on that caused a lot of problems).

At the very end of the book there are 130 questions testing understanding or memory of the text.

4. German legal language

The first part of the book deals with the characteristics of legal German, starting with sentence patterns and continuing inter alia with prepositions, tenses and
At all events, the first 200 pages of the book give a very detailed analysis of legal German which is also clearly set out and comprehensible. I could learn from them myself. They might also form the basis for a comparative analysis of how to translate legal German into English, whether that was legalese or the kind of less heavy English that some jobs need.

5. Lists of legal terms

Still in Part 1, there are long lists of legal terms, in a number of categories:
Bedeutungsunterschiede: over 40 examples, mainly pairs of words such as Anerkenntnis vs. Geständnis, anhängig vs. rechtshängig, Erbe vs. Vermächtnis. Many of the terms are dealt with in a bit more detail later in the book.
Vertraute Wörter mit anderer Bedeutung
Fachausdrücke der Rechtssprache: ‘Diese Ausdrücke sollten Sie kennen’. A long list with definitions, starting with abdingbar, abgängig, Adhäsionsverfahren, ahnden, Akt, aktenkundig.
Komische Wörter und Ausdrücke: “mit Verlaub”, abbedingen, Abbruch, Abkömmling, Absehen, absprechen and so on.
Stilebenen, Register, Soziolekt: colloquial expressions contrasted with legalese, e.g. Adresse/Anschrift, ansehen/in Augenschein nehmen.

6. Legal terms in the context of an introduction to German law
A nice introduction to the elements of German law, both substantive and procedural. There are also lists of abbreviations and Latin expressions.

At the back, following the final exercise, there is a brief bibliography and also a list of internet links.

That concludes a summary of most of the book. Again, look at the table of contents on the website linked above for a full impression.

One problem of a book like this is searching in it. It does have an index of the keywords at the back, fortunately. Not every word given special treatment counts as a keyword, though. The ‘komische Wörter’ for us foreigners are not included in the index.

As a final comment I have some difficulty in using the definitions of words. But I am not the intended audience for the book. I would be more inclined to go to a statute or to Creifelds or anywhere else I could find a serious legal definition meant for lawyers. But this would not be possible for many of the words dealt with. German general dictionaries exclude legalese (Fachsprache) so we translators are quite dependent on the help of colleagues. Take the word nachlassen in the sense of ‘permit’, for which see Corinna Schlüter-Ellner (below). The bibliography also contains other books that may be helpful; in addition to the volume by Ulrich Daum mentioned above I would add:

Schlüter-Ellner, Corinna: Juristendeutsch verständlich gemacht. Treffende Verben in der deutschen Rechtssprache (same publisher; the book comprises two sections and is not restricted to court vocabulary)
Simon, Heike and Funk-Baker, Gesela: Einführung in das deutsche Recht und die deutsche Rechtssprache