iDivorce

It’s only a few months before divorce law in England and Wales becomes more sensible. But currently, if you want a fairly quick divorce, the easiest way is to prove that your spouse’s behaviour is ‘unreasonable’, that is, not reasonably acceptable to you.

In times of iSmash, iBroken and so on, it’s not surprising that there is a firm called iDivorce. A judge has recently rapped them over the knuckles for having 28 clients with virtually identical wording with regard to the respondents’ behaviour.

Judge spots clowntown divorce factory using identical wording in 28 petitions (RollOnFriday):

IDivorces’ efficient but unlawful approach had resulted in declarations that were untrue, said The judge. “If I needed to give an example, it would be to say that it would be incredible if all twenty eight respondents ignored the twenty eight petitioners and declined to communicate with them on about two days per week”, he said.

Lord Chancellor’s Breakfast 2021

Lord Chief Justice, left, with train-bearer; Lord Chancellor; mace-bearer

It took place this year, but with some masked and with fewer judges than usual.

I’m not sure I will do this again, because the peculiarities of post-lockdown meant that I accidentally joined the professional photographers, though I did not have a press pass. The light is so much better from the other side! I doubt I could wing it again. But I will investigate getting a press pass or waving my RPS membership card.

As always, I have difficulties working out who is who. First appears the Lord Chancellor, Dominic Rudd (at least he studied law – Liz Truss wasn’t even capable of attacking the tabloid press on ‘Enemies of the People’), together with the Lord Chief Justice, currently Lord Burnett of Maldon, the most important judge after him, who wears the High Court red but with the extra detail of a train, which here a woman has to carry. There is a man with no apparent function too.

After this come a mixture of both justices of the Supreme Court and the Court of Appeal. There is a certain order of priority. Thus, first come a few in full-bottomed wigs – these are the heads of division. The one in front here is Dame Victoria Sharp, the President of the Queen’s Bench Division:

I read that she had four children in five years and did not take any leave at all, because as a barrister she would only get work if she was present in chambers. This might be one of those children, just a guess. Behind her is probably Sir Geoffrey Vos, the Master of the Rolls, but I am not sure. I am just guessing he would be next.

The mystery is: who is the gentleman in the tricorne hat? I am thinking possibly a Canadian judge, but then why so early in the procession? The umbrella-bearer may be a guest of the man on the left. The UK Parliament website says:

Guests include:

  • judges from England and Wales
  • senior judicial officers
  • the Law Officers of the Crown
  • Queen’s Counsel (QCs)
  • overseas judges and lawyers
  • members of the European Court, and
  • Government ministers.

A new legal German-English dictionary

I haven’t seen Rinscheid/Miller yet but only heard of it today, though it came out in June. It’s also available as a digital dictionary through Acolada and there is a link where you can select this dictionary and do some searches. However, I don’t know if that search would show the non-dictionary part. Thanks to Hans Anschütz for the newsletter.

Beck Verlag has a description of the book, (see below), which is not yet available. It seems that the Unilex version is available, as far as I can tell at this moment.

The Beck Verlag description indicates that the dictionary aims to offer more than individual word equivalents. The vocabulary alone, they write, is not correspondence with clients or drafting of a pleading. If you just look up words, you simply use the equivalents suggested by the dictionary and make mistakes. (But that’s the whole point: legal and other translation dictionaries should be used to remind you of what you know, not to give you unfamiliar words you don’t know how to use). This work has three parts: an alphabetical glossary with example sentences, definitions and context examples; a thematic arrangement of the terms; aids to formulations and text building blocks – emails, pleadings, phone conferences etc.

I’m really curious to see how this is done. I know a couple of legal glossaries which are divided according to subject matter, for example contract, crime, administrative law. It usually takes longer to find things. And will the Unilex digital version reflect this organization?

Personally, I have always been excited to see collections of phrases and sentences for specific legal areas, but I have not found them much use for myself in practice. At the moment of translation, fishing through other people’s collections of sentences creates too much stress. Usually I did not have time to read the dictionary at the moment I needed it. So I would tell myself that I would take time to study an area of German law and compare it with English law, then I would have the information in my head at the future time when I needed it. This never worked either.

I am particularly interested to see (German) judges in English-language chambers in the list of potential users. What was the word they couldn’t handle? Grundurteil.Ah, I see that is not contained in the Unilex version. I find this there under judgment:

Once he has a final judgment, he will be entitled to collect damages.
The structure of a German judgment foresees a dedicated part that labeled the statement of facts.
Due to section 313b of the German Code of Civil Procedure, there are circumstances under which a judgment need not address the facts and the merits of the case nor must the judgment cite reasons on which they are based.
Under no circumstances shall the debtor be informed of the pending freezing order because the enforcement of the judgment would be frustrated otherwise.
The judgment was upheld on appeal.
→ Häufig wird der Begriff “judgment” mit “e” (judgement) geschrieben. Das ist nicht korrekt, wird allerdings soweit ersichtlich zunehmend geduldet.
→ Nicht verwendet werden sollte der Begriff “verdict”, da es sich hierbei um die Entscheidung einer Jury handelt, welche es in Deutschland naturgemäß nicht gibt.
↔ arbitral award (= Schiedsspruch)

Oh dear, not quite English. ‘foresees a dedicated part that labeled the statement of facts’. Obviously an ‘is’ is missing, but is the rest English? ‘Due to section 313b…’ Maybe ‘under section 313b’? ‘Shall the debtor…’ We don’t really use this contractual ‘shall’ outside contracts and judgments – the style of the sentence is a bit rocky.

From the Beck Verlag site:

Zum Werk
Die fachgerechte Formulierung deutscher Rechtsberatung in englischer Sprache erfordert mehr als lediglich die Übersetzung einzelner Rechtsbegriffe. Die schnell zugänglichen Online- Wörterbücher scheinen nur auf den ersten Blick eine verlässliche Hilfestellung bei der kontextgerechten Verwendung eines Rechtsbegriffs zu bieten. Mit der Vokabel allein ist schließlich noch keine Korrespondenz mit dem Mandanten geführt, kein Schriftsatz geschrieben und auch keine vernünftige Anleitung für eine Telefonkonferenz gegeben. Konsequenz ist eine häufig unreflektierte Verwendung von Übersetzungsvorschlägen mit in der Folge fehlerhafter Darstellung.
Die Autoren des vorliegenden Werkes schließen eine wichtige Lücke, in dem sie dem international arbeitenden Juristen eine umfassende Arbeitsgrundlage zur Verwendung der englischen Rechtssprache liefern. Hierzu ist das Werk auf drei Säulen aufgebaut. Erstens enthält das Werk ein alphabetisch sortiertes Glossar mitsamt Beispielssätzen, Erläuterungen und Hinweisen zur kontextgerechten Verwendung (Deutsch-Englisch). Zweitens sind die Begriffe zusätzlich thematisch sortiert – so kann sich der Rechtsanwender mit den in einem speziellen Sach- oder Rechtsgebiet geläufigen Vokabeln vertraut machen, beispielsweise vor einer Mandantenbesprechung. Die dritte Säule bilden Formulierungshilfen und Textbausteine für die Praxis (Emails, Schriftsätze, Telefonkonferenzen etc.).

Vorteile auf einen Blick
Das vorliegende Buch bietet

ein klassisches zweisprachiges Nachschlagewerk/Wörterbuch mit Beispielsätzen, Erläuterungen und Hinweisen

zusätzlich die Möglichkeit einer nach Sach- und Rechtsgebieten geordneten Suche

Englische Formulierungshilfen aus der Praxis

Zielgruppe
Für international tätige Anwälte und Unternehmensjuristen, Richter in englischsprachigen Kammern, Juristische Fachübersetzer, Studierende der Fachspezifischen Fremdsprachenausbildung, Universitäten und Forschungseinrichtungen.

F for Frankfurt

Richard Schneider at uepo.de reports that there is a new DIN proposal for a German phonetic alphabet.

It seems a good idea to me to know the German phonetic or spelling alphabet and the international one, but nevertheless I usually get confused when speaking to Germans on the phone and needing to spell something. Wikipedia has a lot. I notice I’ve even been making mistakes spelling out my postcode in the UK, saying Romeo Michael instead of Romeo Mike.

I was not aware that in 1934 the German Buchstabiertafel was arianized. Thus David became Dora, Jacob became Jot, Nathan Nordpol, Samuel Siegfried, and Zacharias Zeppelin.

There was a plan to restore David, Jakob and Nathan – Samuel and Zacharias were changed back in 1948 – but this latest plan simply replaces all first names by town names, so D for Düsseldorf, J for Jena, N for Nürnberg, S for Stuttgart and Z for Zwickau.

It was pointed out that the Nazi changes were only partially reversed, and there were 16 male names and only six female ones. Other countries had good results using city names, it was said.

This DIN 5009 draft is now open for discussion. It has an appendix showing the original, mainly Weimar Republic, phonetic alphabet. The final version is likely to appear in mid-2022.

I can’t picture myself achieving any kind of consistency now.

Cleaning up bird names

There’s been an initiative in the USA to change the names of birds named after historical figures, some of whom were racist. The only example changed as yet seems to have been McCown’s Longspur, now called Thick-billed Longspur. The American Ornithological Society made the change.

The Bird Names for Birds site proposes that birds should not be named after people, whether they were white men (usually) or not. Here is a list they created of all the persons named: Historical Bios Index.

Birdwatching (Your source for becoming a better birder) writes:

The practice of naming species after people was common in the 1800s, when white naturalists honored their friends, family members, or colleagues (often other white naturalists) with eponyms — birds or other animals or plants named in their honor.

Today, many of those names are fraught with ethical problems.

McCown’s Longspur, for example, was named for an officer of the Confederacy who defended slavery and also battled multiple Native American tribes. Townsend’s Solitaire and Townsend’s Warbler bear the name of John Kirk Townsend, a naturalist who stole human remains from graves of Native Americans. John James Audubon, revered for his art, nevertheless also owned enslaved people and collected skulls of Mexican soldiers from a Texas battlefield* — a fact that casts a shadow over the oriole and shearwater named for him.

The topic was taken up in February 2021 by Titus Arnu in Süddeutsche Zeitung, in Skandal im Anflug, although the names in German are not so much those of white ornithologists, but more ones using Mohr, Hottentot and so on. The examples of actual changes are few. The Mohrenlerche (literally Moorish lark, English black lark) has been renamed Schwarzsteppenlerche (literally black steppe lark) and the Ziegenmelker (literally goat milker, English nightjar, but also goatsucker) renamed Nachtschwalbe (literally night swallow) – this last change was more because the bird is not thought to suckle goats.

The journalist gets rather carried away, understandable:

Stehen nach den Skandalen in der katholischen Kirche bald auch Papstfink, Purpurkardinal, Türkisbischof und Dompfaff auf der Abschussliste? Sind alle Neuntöter Serienkiller? Darf man noch Türkentaube sagen und erwähnen, dass der aus Asien stammende Vogel einen Migrationshintergrund hat? Auch der Stummelschwanz-Zwergtyrann, der Raubwürger und der Basstölpel wären wohl nicht undankbar für harmlosere Bezeichnungen. Manchen Vögeln würde man imagemäßig Auftrieb geben mit einem frischen Namen. Die Hottentottenente kann ein Lied davon klicken.

Machine translation and legal translation

Every time I think I might write about this it seems a drop in the ocean, but then the topic comes up again. Machine translation has become very much better since it was first based on neural networks. In fact, I thought we had departed from rule-based MT and arrived at statistical MT, but we are now on neural MT, excuse my ignorance.

In my experience of using DeepL and DeepL Pro and Google Translate a few times, these systems are very good but not 100% reliable. Which means that sometimes a negative sentence may be rendered as a positive. I have no experience of revising MT output or preparing texts for MT.

But what strikes me specifically about legal texts is that when I put a German text through DeepL, the standard or ‘official’ translations of court names and statute titles are missing, although in Linguee they are present. In the old days, a law firm wanting to use rule-based MT was able to adapt its MT system by filling it with the standard translations into English. Now it is not so, and I would spend a lot of time revising the versions.

This was remarked on in a short article in MDÜ 6/2019 by hans Christian von Steuber. He refers to a talk by Patrick Mustu “Was DeepL & Co. im Zeitalter von 4.0 (noch) nicht können”:

Ein Beispiel aus eminer Erfahrung: Die beliebte “Datenschutzgrundverordnung” wird als “basis data protection regulation” übersetzt, “DSGVO” überhaupt nicht”.

This is the GDPR. It’s always surprising when this is not recognized. And when the translation of a statute title varies within one text.

Another reference was mentioned by colleagues this week. The Swiss Federal Chancellery (Bundeskanzlei) was going to buy licences for 2000 DeepL users in 2019 (UEPO December 2018) and had a review of the effectiveness done (PDF Bericht DeepL-Test). Here an example:

Original text: loi fédérale sur les prestations
de sécurité privées fournies à
l’étranger (LPSP)

DeepL translation: Federal Law on Private Security
Services Abroad (LPSP)

Post-edited text: Federal Act on Private Security
Services Provided Abroad
(PSSA)

I always wonder when I see English versions of abbreviations of statute names recommended. Leaving it in German is odd and so is creating an English version such as PSSA (obviously the work of a human post-editor).

That’s all I have to say about MT and legal translation, but the Swiss test contains a classification of MT problems.

Goodbye to Palandt

Bye-bye, Palandt! – post at the Dispute Resolution Germany blog, on July 27th:

C.H. Beck, Germany’s leading legal publisher, today announced that several of its publications will finally be renamed in light of the Nazi past of the jurists whose names they currently bear. All of these publications are household names for law students and practitioners alike.

The campaign for these names to be changed was pretty much a niche thing for many years and gained traction and public visibility only fairly recently.

I didn’t realize that Palandt was a member of the Nazi party. According to German Wikipedia, Beck Verlag chose him as the editor (of the BGB commentary) at short notice in 1938. Palandt (1877-1951) wrote the foreword and introduction until the tenth edition in 1952. In 1945 he removed the pro-Nazi bits. He was allegedly not responsible for the overall editing.

I haven’t got a Palandt at the moment, but I have sometimes bought reduced-price older editions in Germany and found them very useful, but not predictably frequently. Probably there are ways of consulting it online – it was never very easy as a full-time freelance translator to go to a library to consult it, as time was scarce.

After much criticism, Beck Verlag has eventually decided to change the name from Palandt to Grüneberg. The same fate befalls Maunz, Schönfelder (killed in Italy in 1944) and Blümich (I don’t think I’ve encountered Blümich).

‘Shall’ in English contracts

I recently heard a webinar by Christin Dallmann and Richard Delaney on translation problems in contract law. I highly recommend these webinars. It reminded me of that old chestnut: do we use ‘shall’ in a contract (when drafting or translating)?

Richard Delaney has now written a guest post on the use of ‘shall’ in Kevin Lossner’s Translation Tribulations blog, https://www.translationtribulations.com/2021/05/richard-delaney-on-shall.html. Kevin writes that this text was originally part of a social media discussion, but I don’t know where that was and didn’t see it. I am not going to argue point-by-point with Richard’s summary, just set out my own.

I think the mandatory verb in a contract can be shall, will or must. It ought to be used exclusively (some English contracts mix shall and will). I do not think the choice of verb form is likely to confuse any reader. The reader will realize that the verb imposes an obligation.

I posted on this on March 1 2013, since when I have surely changed my mind in some ways.
Shall I or shan’t I? Shall, must and the plain language brigade. The comments are interesting though.

Thornton on legislative drafting is relevant too, although it’s about legislation, not contracts.

  1. I use shall in the imperative or mandatory sense when I translate from the German (as Richard does). I use it even when it is not clear from the German original who the duty is imposed on.

One of the commenters on Kevin’s blog, Stephen Rifkin, writes:


According to the legal experts I have consulted in books and person, “shall” is very simple – legal obligation. A body, personal or legal, can have an obligation. Therefore, it is correct to say: The Tenant shall pay the rent on the 1st of the month but incorrect to say that “The rent shall be paid on the 1st of the month.”

I understand his point, but I would use shall here too, despite the lack of a subject. It does annoy me when German contracts appear to impose duties without indicating who is responsible, but I wonder what the alternative translation would be – varying the verb when the German doesn’t?

One objection to shall I have read recently is that since it is used in a variety of ways, it is more confusing than must for non-native speakers of English who nevertheless have to make do with English translations (rather than Arabic or whatever). That seems possible.

As often mentioned, Bryan Garner is an advocate of avoiding shall altogether (in original English contracts, of course). I think he got this from a movement in Australia and Canada. He lists something like 16 uses of shall, most of them unsatisfactory.

Writers who advocate plain English in law also condemn shall. One argument I’ve read is that if shall is used in different ways within one contract, a court might query whether it has a mandatory meaning at all. I would certain advise against using shall in more than one sense (for example, ‘If the landlord shall…’). Of course, I am not drafting a contract, but always translating a contract where the German version is defined as binding, so I doubt that a messily translated contract would be challenged in court, but you never know.

  1. Instead of shall, will can be used. If either party will do something, this is a promise by a party to the contract that has a binding effect. Some English contracts I have seen use both will and shall, for example, ‘the insurer will’ and ‘the insured shall’. This mixture is likely to confuse readers and so it is better to use either one or the other consistently when translating into English. Geoffrey Leech, see below, calls it a ‘quasi-imperative’.
  2. A third possibility is must. This is perfectly possible and avoids any unclarity. My only objection is that it sounds a bit unnatural to me.
  3. English grammar books not specifically about legal texts: when I first wrote about the use of shall, will and must for legal translation students, I was also teaching English grammar to a wider group. My understanding of English verb forms – tenses and modals – was based on the second edition of Geoffrey Leech’s book ‘Meaning and the English Verb’. I can’t agree with some writers who describe will and shall as ‘simple future’, because both verbs have a variety of uses and there is no simple future.

I will quote the third edition of Leech on will in contracts.

There is a difference between the will of insistence above and a QUASI-IMPERATIVE will found with second- and third-person subects: You will do as I say. The Duty Officer will report for duty at 0700 hours. This will is a stronger equivalent of must, and expre000sses the will of the originator of the message, rather than of the subject. It also differs from the will of insistence in that it is not strongly stressed. The quasi-imperative will seems to be a special use of the future will of ‘prediction’, the implication being that the speaker or writer has so much authority over the addressee that failure to perform the predicted action is out of the question. Hence it has military and despotic associations.

The verbs shall and will can be used to refer to the future but also as modal verbs (there is some overlap between future and modal uses). There is no ‘simple future’. For example, the German ‘morgen fahre ich nach Hause’ is not translated as ‘I will go home tomorrow’, but usually as ‘I am going home tomorrow’. ‘I will go home tomorrow’ might be said at the moment of decision or as a promise. Without going into more detail, in a contract I have always seen ‘The insurer will…reimburse’ as a promise made in a contract and therefore binding. (But Geoffrey Leech calls it ‘quasi-imperative’, see above).
When giving examples of usage, it is a good idea to stick to the affirmative use, excluding negatives and questions, which only confuse the description.

And on shall:
RULES AND REGULATIONS (with second-person or third-person subjects)
A player who bids incorrectly shall forfeit fifty points {rules of a card game. The hood shall be of scarlet cloth, with a silk lining of the colour of the faculty {rules for academic dress}.
This usage is found only in legal or quasi-legal documents. Here shall could be replaced by must (=’obligation’), or by the ‘quasi-imperative’ will.

  1. Use of present tense in German contracts.
    Something Richard Delaney mentioned in the webinar that I have never commented on but that is a constant problem is that the present tense in German contracts is usually used to mean an obligation, but it can also be a statement of fact.

Bryan A. Garner, Garner’s Dictionary of Legal Usage, 3rd ed. 2011

Bankers boxes

Following on from the previous post, it seems that US/UK banker’s boxes are similar to the German ones.

Assembling a bankers box – Youtube video. This isn’t quite the same as the German boxes, but a similar principle.

And Thomson Reuters legal blog has a post Why do they call them Bankers Boxes?

It seems that the inventor, Walter Nickel, sold these boxes to banks to store records. He sold the rights when he was called up for WWI in 1917 (did he survive?). The buyer, Harry Fellowes, named his company the Bankers Box Company. It later became Fellowes.

Legal stationery – the topic that keeps on giving.

Thanks to Tom West.