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…

8 thoughts on “Terminology/Fortsetzungshandlung

  1. Thanks for the neat exposition, Margaret.
    1. Yes. Köbler’s translations aren’t much use.
    2. Romain and Dietel aren’t much better. The Eng. term in civil pleadings is ‘and the breach (negligence/ nuisance/ copyright infringement) is continuing. AND THE CLAIMANT (plaintiff) claims an injunction plus damages and interest.’ This also came up in a recent Spanish arrest warrant case for non-payment of child maintenance (yes imprisonment possible in the UK on a judgement summons). The absconding father was committing a ‘continuing’ and not repeated criminal offence.
    No standard Eng. boilerplate in the example you give as continuing breach is not a ground of mitigation. However, in a criminal case, the Defendant can ask for other offences to be ‘taken into account’. I suggest for your albeit civil claim quote: ‘the party is barred (‘estopped’) from entering the defence of a nexus of continuing breaches as a mitigating factor’. Mixing civil and criminal metaphors: ‘Other breaches shall not be taken into account (‘rolled up’) as one connected continuing breach to reduce the contractual penalty/ liquidated damages payable’ Let’s not get into the contractual distinction on the last 2 terms!
    3. Excuse my mix-up. Yes Köbler mentions Fortsetzungszusammenhang – not -handlung – and then annoyingly refers the reader to fortgestetzte Handlung, quoting the StGB – Criminal Code only – when your previous point clearly extends to a civil context, as I’ve also often come across.
    4.Post-trial 1968, the Eng. Indictment Rules 1971 rule 9 was added: separate counts can be included in a trial indictment if they are:
    a. founded on the same facts; or
    b. part of a series of offences of the same or similar character.
    Leading case – Ludlow v. MPC (1970): theft from a pub in Acton and robbery at another one 16 days later. House of Lords held, inter alia, both law and facts have to be taken into a/c. For offence to be similar, there must be a NEXUS between them.
    Also, nexus pops up quite a lot in sophisticated ! Eng. civil judgements in contract and tort. Google clocks up a lot of hits for ‘contractual nexus’ i.e. Donoghue v. Stevenson – Ginger Beer case: nexus between manfuacturer-shop-consumer.
    5. You’re playing dangerous on this one! Herbst gives the useless concomitance for Tateinheit (Idealkonkurrenz – Span. concurso ideal) and nothing for Tatmehrheit (Realkonkurrenz – concurso real). Conversely, von Eichborn gives the promising joinder of offences for the latter and nothing for the former.
    There must be a Roman-law connection between the German and Spanish terms for which Butterworth’s legal dictionary gives unusable, long-winded definitions. I’ve ‘cheated’ by going to the trial indictment stage in Span. For the first one: nexus !/combination/ or series of jointly indictable, poss. transferred-malice, related offences. Second one: ditto of singly and severally indictable, related offences.
    Must go out eam before the Italian ice cream parlour closes!

  2. There is a lot here and although I have some immediate reactions, I will set it all out tidily in due course, probably tonight. Thanks!

  3. Right, this is getting more and more complicated, but interesting!

    2. I wasn’t thinking of a continuing breach at all. I thought there were only two contexts for this term:
    a) the criminal-law one, obsolete since 1994, where when calculating the sentence the courts allowed you to regard an offence as one single continuing offence in certain circumstances

    b) contracts imposing a contractual penalty or liquidated damages (I will make a separate entry on this topic sooner or later; some prefer never to use the term ‘penalty’ in translations into English for fear the courts will squash it), where the parties say ‘A party committing a breach shall pay a contractual penalty, and for each single incident of breach the full penalty shall be paid – the party committing the breach shall not be allowed to argue that the breaches constitute one continuing breach’, so you pay more.

    I definitely intended to refer to this second, civil-law example – sorry if I didn’t make that clear. I don’t think I included criminal and civil law in the same numbered point.

    Do the Germans use the term fortsetzen for continuing copyright infringements? (Question to myself prior to checking it) Yes, I suppose they do. I find more examples of fortgesetzter Verstoß and fortgesetzte Verletzungshandlung / fortgesetzte (Vertrags-)Verletzung. OK – but I didn’t think about that at all.

    But to answer my own question, I found no boilerplate because English liquidated damages clauses don’t seem to specify this.

    About ‘taking other offences into consideration/account’ – I happened to have read a bit about that before posting. These offences are called t.i.c.’s! It is a very specific thing in criminal law (I was seeing how similar it was to creating a Gesamtstrafe under German law): I think there is no actual conviction, but the sentence is higher than warranted by the offences actually indicted. Not sure if I would want to widen the use of this.

    4. I don’t object to nexus. It seems a good formal term. I just wonder if it is a term of art.

    5. I’m not sure why you say I’m ‘playing dangerous’ – because it’s another big area? If it really matters to the text, I would call Tateinheit commission of several offences by one act and Tatmehrheit several offences committed by several acts – and Lister/Veth add ‘and allowing joinder of charges’, which is what you’ve been saying.

    I recall one of the old texts for DE>EN legal translation in the Bavarian Staatsprüfung for translators which had a reference to three offences that were both tateinheitlich and rechtlich zusammentreffend. It was an insult (back to Beleidigung here) committed by words something like ‘Ihr blöden Bullen’ addressed in a sauna to two police officers who had been called in. In one act, the defendant insulted not only two policemen, but also indirectly their superior! (The exact words weren’t quoted as this was an appeal).

    About the Spanish and German link, Tom West said when preparing a talk for the New Jersey conference that the Spanish criminal law was influenced by German. He wanted to know what is meant by Tatbestandsmäßigkeit, Rechtswidrigkeit and Schuld. He didn’t find it too hard to understand because the Americans tend not to talk about defences, but to divide them immediately into justifications and excuses.

    Not sure about the ‘singly and severally indictable’. I think both types can be indicted together – the only difference is their treatment in sentencing: Tatmehrheit – Gesamtstrafe is made by increasing the greatest individual sentence, and must be less than the sum of the individual sentences, which are added together at first; Tateinheit – only one sentence, taken from the statute containing the harshest penalty.

    I don’t really want to think about this any more at the moment. You are too concise for me in ‘transferred malice’.

  4. OK. It’s late.

    Point 2 taken. One end-user wanted the ‘typically Eng. Common Law’ liquidated damages changed to the ‘neutral’ contractual penalty. I told the agency of the pitfall of Eng. courts traditionally striking down such a clause. But the agency chose to stick up for the client. ‘He who pays the piper calls the tune’.
    Point 4. It is a term of art in Eng. criminal indictments. Dodgy to use ‘connection’ and not nexus between the offences in the light of the House of Lords decision quoted. I must confess: I’ve also been watching out for the term in the Eng. (Times – paying sub only now) Law Reports where it does show up with increasing frequency.
    Point 5. Yes. Dangerous did mean opening up another wide-area subject.
    Like your trans. for Tateinheit und -mehrheit. The sentencing policy is on all fours with the Spanish term(s) that recently came up on another network. I think Tom West is speaking in Madrid next weekend on US v- Spanish/South Am. corporate law and ‘Articles of Incorporation’. I can’t make it then.
    Transferred malice is a typical Eng. criminal law concept – or trick exam question – and one hallmark of Tateinheit/ Idealkonkurrenz: A throws a stone at B and misses, hitting C instead. In Eng., Germany and Spain, A has no defence, excuse or justification…

  5. OK. It’s late.

    Point 2 taken. One end-user wanted the ‘typically Eng. Common Law’ liquidated damages changed to the ‘neutral’ contractual penalty. I told the agency of the pitfall of Eng. courts traditionally striking down such a clause. But the agency chose to stick up for the client. ‘He who pays the piper calls the tune’.
    Point 4. It is a term of art in Eng. criminal indictments. Dodgy to use ‘connection’ and not nexus between the offences in the light of the House of Lords decision quoted. I must confess: I’ve also been watching out for the term in the Eng. (Times – paying sub only now) Law Reports where it does show up with increasing frequency.
    Point 5. Yes. Dangerous did mean opening up another wide-area subject.
    Like your trans. for Tateinheit und -mehrheit. The sentencing policy is on all fours with the Spanish term(s) that recently came up on another network. I think Tom West is speaking in Madrid next weekend on US v- Spanish/South Am. corporate law and ‘Articles of Incorporation’. I can’t make it then.
    Transferred malice is a typical Eng. criminal law concept – or trick exam question – and one hallmark of Tateinheit/ Idealkonkurrenz: A throws a stone at B and misses, hitting C instead. In Eng., Germany and Spain, A has no defence, excuse or justification…

  6. OK. It’s late.

    Point 2 taken. One end-user wanted the ‘typically Eng. Common Law’ liquidated damages changed to the ‘neutral’ contractual penalty. I told the agency of the pitfall of Eng. courts traditionally striking down such a clause. But the agency chose to stick up for the client. ‘He who pays the piper calls the tune’.
    Point 4. It is a term of art in Eng. criminal indictments. Dodgy to use ‘connection’ and not nexus between the offences in the light of the House of Lords decision quoted. I must confess: I’ve also been watching out for the term in the Eng. (Times – paying sub only now) Law Reports where it does show up with increasing frequency.
    Point 5. Yes. Dangerous did mean opening up another wide-area subject.
    Like your trans. for Tateinheit und -mehrheit. The sentencing policy is on all fours with the Spanish term(s) that recently came up on another network. I think Tom West is speaking in Madrid next weekend on US v- Spanish/South Am. corporate law and ‘Articles of Incorporation’. I can’t make it then.
    Transferred malice is a typical Eng. criminal law concept – or trick exam question – and one hallmark of Tateinheit/ Idealkonkurrenz: A throws a stone at B and misses, hitting C instead. In Eng., Germany and Spain, A has no defence, excuse or justification…

  7. But this is exactly where you and I disagree – you would always use an English term of art and I see no need for it. I think that’s a big distinction between legal translations. I would be worried that the reader might conclude this is English law he’s reading about and draw more parallels than are appropriate. In this case, if the term ‘nexus’ has become a term of art, it is in a different connection – indicting, not sentencing. But even if it were the appropriate term of art, why not use a synonym? I mean, that’s my approach, but certainly not yours, so there’s a limit to how far we can take a discussion.

    About transferred malice and Tateinheit – do you mean that D commits both attempted assault on B and assault on C concurrently?

  8. I tend to nexus more because it’s Latin and therefore likelier to impress a client who is not anti-Latin. On a flexible approach, link, connection or even privity in a contract context would be within acceptable parameters.

    Yes. You’re right about the transferred malice I use an example only – though there’s more to it. It goes back to that ancient Eng. criminal law case of a prankster throwing a squib into a market crowd. The market visitors hit throw the squib over their heads until it explodes in the victim’s face. Technically, there’s an attempt all the way along, but the original malice is transferred to the actual victim. Doesn’t matter who the original target was.

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