Quaks is the name given to the pelican that has been following storks for a couple of years and has now been spotted in Fürth and Erlangen, but alas not by me.
The Bavarian bird organization is providing updates so I have a rough idea of where to drive.
Typical German contracts that I get to translate will start off by naming the parties and in brackets defining a short name, e.g. im folgenden: “Käufer” (hereinafter referred to as the Seller).
That’s similar to the English-language approach. I usually remove the inverted commas. It is not necessary to capitalize seller, at least in England, but my clients appear to expect it.
After this, the contracts usually never use the term Käufer or Verkäufer again! They will write Vertragspartei, or name the company, but having defined the terms they drop them. I have sometimes seen a party referred to in four different ways in one short contract. Or having defined die Produkte (the Products), the writer thereafter refers to die Vertragsprodukte (the contract products – presumably this can’t be capitalized if it hasn’t been defined).
As a result, a translator’s note usually needs to be made. One doesn’t want to use several different terms in English, even if it is easy to do so (which it sometimes isn’t), but nor does one want to misinterpret.
Incidentally, I would love to use the company name instead of Seller, especially where the defined term is hard to translate, but this is usually rejected, possibly because the customer wants a text that can be used in future with a variety of parties (in which case, I need to know that, so I can ensure the translation is not gender-biased, for example), possibly just out of a feeling that this is too great a departure from the German.
Anyway, it’s clear why the defined terms are not used consistently – it’s because the drafter grabbed bits from a variety of sources and did not adapt them. That happens with English contracts too. And the drafter is sometimes not even a lawyer. But still, the prevalence of this in German contracts always surprises me.
Why is it so? I think it must partly be because the German drafter doesn’t feel the definition of terms is needed for clarity. This refers to shortish contracts, of course, not the huge ones preceded by dozens of definitions.
Incidentally, contracts online are often standard contracts intended to be adapted by the user, so they do not vary the names of the parties, since der Käufer/die Käuferin (the latter often refers to a company rather than a woman) are the only terms they have.
On 13 January 1982, Air Florida Flight 90 crashed into the 14th Street Bridge during a snowstorm. That was before the days of Twitter and mobile phones used in the recent plane crash in the Hudson, and radio hams helped. One of the radio hams was Marius Novi (Jean Marius Novi), an interpreter inter alia for the International Criminal Tribunal for the former Yugoslavia in The Hague. He helped engineer a phone patch (whatever that means) and volunteered services and equipment over a period of four days. (Communications, PDF)
I waws sorry to hear – rather later – that Marius died aged only 62 of sepsis on 19 June 2007 in Georgetown University Hospital. He was a member of the FLEFO forum on CompuServe and will be remembered among translators and interpreters.
(Thanks to Alex for the ghit)
I eventually got Merriam-Webster’s Concise Dictionary of English Usage, as often recommended by Mark Liberman on Language Log. Well, he recommends the non-concise one. Here’s a recommendation and quote, on the topic of ‘I appreciate you/your coming over to help me’ (that is one of those cases where every time I use the accusative ‘you’ form, I am worried about people thinking it’s wrong).
I should have got the longer one, of course – the concise one doesn’t look very concise, though.
A commenter on that entry points out that the whole book is available on Google Books.
Introduction to English law for translators and/or non-lawyers
English law has been developing for over 1,000 years. Sometimes it is necessary to know some legal history in order to understand English law. This is not the space for a full history, though.
(Lawyers with a few courses on legal history under their belts feel free to look away).
Take the concept of equity. All my introductory notes can do is draw attention to its existence. Translators who suddenly come across a term from equity in the middle of something else should at least have enough orientation to know where to start their research.
What may be of interest are the following areas:
1. The history of the courts, especially those in London. Germany has a nice tidy (at least on the surface) system of courts, with three instances in several branches. England and Wales has a less logical system, which has grown up over a longer period of time. Learning about the development of the courts through the ages may make this clearer.
2. The history of contract and tort. Contract and tort developed out of what are known as the forms of action, and you might encounter references to this part of legal history. A form of action was a writ (very approximately Klageschrift – better Klageformel – see commentary) with a particular wording. If your legal proceeding matched one of the writs/forms of action, you could start proceedings. But if there was no form of action available for your situation, you were helpless.
For example, there was a writ in what was called an action of covenant that could be used to sue someone who had not performed a contract under seal. So contracts under seal have always been valid without any rigmarole. If the contract was not under seal, and A built a house for B, but B did not pay, there was an action of debt that meant A could sue B for the money. However, if B paid but A did not build the house, there was at first no action available for B to sue A.
How this situation was remedied and contract law was developed out of the writ of assumpsit is too long a story for this page, but it is one that may be encountered by translators.
3. Real actions and personal actions
The earliest actions to be permitted related to land – also known as real property or real estate. They helped a person get back land (res, Latin for thing, meaning the thing itself rather than money damages).
Other actions were called personal actions: the remedy was not a right in land against the rest of the world, but a right against an individual person.
4. Common law and equity
In the period up till 1875, two separate systems of law developed: first, common law, and later, equity.
Before 1066, there existed local courts, which provided revenue for the lords who ran them. They were not standardized. They continued in existence after 1066, but gradually lost importance as William I’s new centralized system of law came into effect.
After 1066 there was a gradual change to a central system of law under William I and his successors. This central system was known as the common law (meaning law common to the whole of England – the first meaning of the term common law). Much of this change happened not in 1066, but in the 12th century, especially in the reign of Henry II, 1154-1189.
As described above, the common law courts developed a restricted number of writs, so that not everyone could obtain a remedy. On top of this, the usual remedy was damages, but not in every case was that a good remedy.
People turned to the king – known as the ‘fountain of justice’ – to help them. The Chancellor, the King’s chaplain and most important official, decided on behalf of the king whether to help. By the end of the 15th century, the decisions of successive chancellors were forming a new, parallel system of law. A new court came into existence, the Court of Chancery, and the Chancellor became a judge who decided according to his conscience.
There were now two systems of law: common law (this is the second meaning of the term common law, meaning the law apart from equity) and equity.
More about the term common law and more about equity in later entries.
Vocabulary note: a remedy is what you want the court to award you: damages, specific performance. Synonyms are redress and relief. Sometimes it might be translated as Klagebegehren (also prayer for relief). It might be translated as Abhilfe, but the commonly encountered translations Rechtsmittel and Rechtsbehelf are not correct.
Equity is a misleading term. It is not necessarily any fairer than the common law. The German term Billigkeitsrecht has been developed to translate it, but if you translate into French, you should avoid équité.
For an excellent, brief and manageable account in German of English private law and its history, see Dieter Henrich, Einführung in das Englische Privatrecht. I don’t know the third edition (2003, co-author Peter Huber). The second edition (1993) was not a major departure from the first (1971), because so much of the book is historical.
An article in the Frankfurter Allgemeine Zeitung considers the brochure Law – Made in Germany (see earlier entry), which it sees as a call to a battle between the legal systems. The authors, Peter Rawert and Markus Baumanns, are both connected to the Bucerius Law School (sic) – Peter Rawert is a notary who teaches contract drafting (a relatively new German subject) there and Markus Baumanns heads its supervisory board.
They are more in favour of creating a supra-national contract law. They refer to a course called Lawyering Across Multiple Legal Orders, taught by Katharina Pistor (who did her law studies in Germany) at Columbia Law School in New York, and a similar one run at Cornell Law School, Bucerius Law School and Kenneth Wang School of Law in Suzhou.
Allerdings grenzt es an Naivität, diesem Befund durch eine „Law Made Simple“-Broschüre begegnen zu wollen. Allein von nationalen Maßstäben ausgehend zwischen vermeintlich guten und schlechten Rechtssystemen zu differenzieren – hier das sichere Kodifikationsrecht der kontinentaleuropäischen Aufklärung, dort das archaische Case-Law der Angelsachsen – ist wenig hilfreich. Immerhin ist es in der Gestaltungspraxis längst gang und gäbe, an die Stelle des vermeintlich „richtigen“ Rechts Parteivereinbarungen zu setzen, die bis in alle filigrane Einzelheiten und wie Gesetze ausgearbeitet sind. Zumeist verbunden mit Schiedsabreden sollen sie den Rückgriff auf nationale Rechtsordnungen und die mit ihnen für die jeweils andere Partei verbundenen tatsächlichen oder befürchteten Nachteile so weit wie möglich vermeiden und dadurch unnötigen Streit verhindern. Deutsches, englisches, spanisches Recht? Die Frage ist zweitrangig. Es geht um die Schaffung eines transsystemischen „lex contractus“, das den zu regelnden Sachverhalt und denkbare Leistungsstörungen möglichst abschließend und kohärent erfasst.
(Via Handakte WebLAWg)