Terminology/Fortsetzungshandlung

In the last entry I quoted Lister/Veth’s entry on fortgesetzte Handlung:

continuous act /offence (UK) / offense (US); several acts or offences of the same nature viewed as a single act by the law

Adrian made a number of comments: that the term is in Köbler’s equally cheap dictionary; that (in Lister/Veth, I think he meant) it is given only as a criminal-law term and not in the form Fortsetzungshandlung; that a colleague was slammed by an Austrian-German law firm in London many years ago for using continuous offence, and that one possible translation would use the term nexus – I’ll quote the comment:

Eng. criminal law – or rather the Indictment Rules – talk of ‘(sequential) nexus of (serially) related offences’ for joint as opposed to separate or several indictment.
Name-dropping again, I would mention Sir Ivan Lawrence QC who developed the ‘nexus’ theory in the notorious 1960’s Kray Twins’ murder trial.

This raises a large number of points. In fact, I doubt I will ever achieve the brevity that is so often advised for weblogs.1. Looking at the Köbler dictionary: Gerhard Köbler, Rechtsenglisch. Rechtswörterbuch für jedermann, ISBN 3 8006 2054 5

Unfortunately I only have the first edition, dated 1996. I think it is in the fifth now. But sometimes I look at it in bookshops to see if some of the oddities are still there, and as far as I know they are. Köbler has produced a number of dictionaries, and this latest series are all bilingual, with a language specialist ‘localizing’ the material. The dictionaries are basically glossaries with very short entries and a lack of the definitions you find in Liste/Veth. Here is Köbler on this topic:

fortgesetzte Handlung (F.) continued act (N.), successive act (N.)
Fortsetzungszusammenhang (M.) continuation (N.) of offence

2. The term Fortsetzungszusammenhang /fortgesetzte Handlungis one of those words that the standard bilingual law dictionaries don’t treat well. Romain:

Fortsetzungszusammenhang m continuation context (offense)

(old Romain: continuation of offence)

and Dietl: nothing!

At the same time it’s a word that translators frequently encounter. Here’s a standard contract-law example someone sent to me by email as a query:

Verstößt Partner gegen eine Verpflichtung aus Ziffer II., hat er für jeden
Fall der Zuwiderhandlung und unter Ausschluss der Einrede des
Fortsetzungszusammenhangs eine Vertragsstrafe in Höhe von 25.000,- Euro zu
zahlen.

(Fairly) literally: ‘the party agrees not to rely on the defence that the infringements constituted one continued infringement’, but that wouldn’t read well, so perhaps ‘more than one infringement shall not be treated as one continued infringement’

(Is there any standard English boilerplate for this: ‘There shall be no discount for repeated breaches’?).

3. This brings me to the legal translator’s (or my) constant dilemma: ignorance. If you don’t happen to be familiar with the German term, you have to start off by understanding it in the context of German law, and Creifelds or the Deutsches Rechts-Lexikon will do that. Or if they don’t, then a commentary on the Criminal Code or Civil Code or a student’s textbook will. (Rückabwicklung is the term I think most often not found by translators). And then you need to find some formulation to convey the idea in English. But if your text simply contains the word fortgesetzt, you may not realize what the reference is. I think experienced legal translators get a sixth sense for this. (Google shows that the most common use of Fortsetzungshandlung is in reference to stories and films! – I have the impression that the correct terms are actually fortgesetzte Handlung and Fortsetzungszusammenhang)

Nevertheless, I often go to the bilingual dictionaries, perhaps too often (perhaps a topic for another thread).

4. My best memories of the Kray brothers are not of the details of their trial. I remember seeing a Kray funeral procession (Reggie’s?) on TV and regretting I hadn’t taped it. There were bouncers there who probably hadn’t seen daylight for years. The Queen Mother’s had nothing on it.
However, I think you can certainly use the term nexus, but only because it’s comprehensible – the word related alone does that too (‘a nexus of (serially) related offences). I don’t like ‘continuous offence’ because it sounds really odd – as if you were emphasizing the unbroken nature (for non-native speakers: continous rain = unbroken, continual rain = stopping and starting). I know the idea is right – the offences can be treated together because they were essentially continuations of the same offence – but since they were committed separately, I find continuous odd. But I wouldn’t call it a mistake if someone wants to use it. As long as it conveys the right idea to the reader, it’s OK.

The fact that one judge used this term in a similar way, albeit with regard to prosecution and not sentencing, so that well-educated English lawyers would experience a little thrill of recognition, would not in itself be a reason for me to use it (if I knew it myself, which I didn’t!). OTOH I pepper my contract translations with ‘shall’ when I do them for German lawyers who pride themselves on their knowledge of English.

5. In German criminal law, there are a number of terms relating to how to sentence someone who is convicted of more than one offence, for instance Tateinheit and Tatmehrheit, and fortgesetzte Handlung. These terms are more technical than anything I can find in English. Adrian looked at the vocabulary relating to joinder of offences for prosecution, which is a good idea. In English law, there are statutory rules for sentencing a combination of offences, but they don’t seem to be helpful to translate these terms. The concept of fortgesetzte Handlung was developed by the courts. If the defendant was held to have committed such a continued offence, he or she would be convicted of one single act. However, according to the Deutsches Rechts-Lexikon, this concept has lost its significance since a 1994 decision. Yet the word is often encountered in texts to be translated…

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