This and that

I have almost given up this blog, but here are a few legal/translation points while I am passing through.

Divorce vocabulary

This week English law at last provided a possibility of no-fault divorce. Previously the only way to get a divorce relatively promptly involved spouses accusing each other of behaviour of various kinds (‘unreasonable behaviour’, meaning behaviour the other spouse could not reasonably be expected to live with). (No-fault divorce is possible in Scotland though).

New divorce laws will come into force from 06 April 2022

So just to make things more interesting for translators, some of the vocabulary has changed. A divorce petition becomes an application, a petitioner an applicant, a decree nisi a conditional order and a divorce decree a divorce order.

Thanks to Laura Elvin for pointing that out.

Beziehungsweise / bzw.

I don’t think I’ve written much about this, but it is a problem to translate.

Without warming up the long discussion on translators’ forums, I would like to quote what a colleague read in a German Patent Office examination report:

“Das Bindewort beziehungsweise (bzw.) ist nicht zur Schaffung zweifelsfreier Rechte geeignet, da es als und, oder oder auch als und/oder verstanden werden kann.”

I love this. I like the bit where they say “… da es als und, oder oder auch als und/oder verstanden werden kann.”
So there is a difference between “und, oder” and “und/oder”.
They could have written “…da es als und, oder bzw. als und/oder verstanden werden kann”, couldn’t they?

Speeding fines based on income

Juliette Scott in her blog From Words to Deeds finds it odd that speeding fines in Finland are based on income.

But it isn’t so odd. In Germany too, and no doubt in other countries outside the UK, the amount of the fine varies between the rich and the poor. So you get a number of points, called Tagessätze, and what a point is worth depends on your income. It makes sense to me.

There used to be problems translating the word Tagessätze. It seemed poor grammar to call it daily rates. I now write daily units. This is because the term was used when the system was briefly introduced in the UK. The problem arises if you write in the papers the exact sum the rich person has to pay, rather than the number of units or the percentage of income used. I suppose that the average newspaper reader is not aware how much richer some people are than others.

This is all so long ago that I’ve forgotten the details. In fact I note that in 2021 and presumably 2022 too, the most egregious speeding fines were related to income. Speeding fines 2021.

Why are litigation letters often so dreadful?

Why are litigation letters often so dreadful?

I picked this old article up from a tweet by Jack of Kent (David Allen Green), the author.

It’s reminiscent of the kind of tone I sometimes hit when translating similar correspondence by German lawyers.

The authors of this dreadful correspondence will invariably profess themselves “surprised” or “astonished” (or even “surprised and astonished”). They are “bewildered” and “confused” and sometimes “shocked”. If any of these assertions were literally true then the dispute resolution departments of many law firms must be in a constant state of noisy hyper-ventilation. It would be close to a national medical emergency.

The comments are good too. Anonymous writes:

David,

I am dismayed and surprised to read this post. The allegations are bewildering when they are not misconceived and illiberal.

I await your response within fourteen days.

I wonder if Rupert Haigh’s Oxford Handbook of Legal Correspondence advises this kind of thing.

Schleierfahndung

When the word Schleierfahndung first began to be used, I tried to pin down its meaning for a translation (I don’t seem to have blogged it, though – this was in the mid-90s, which predates the blog).
The phenomenon seems similar to ‘stop and search’ – stopping and searching people although there is no reason to suspect them. There have been calls for it to be extended since border controls were removed in the Schengen area (which now comprises 26 European countries, not all in the EU, but not the UK and Ireland).
How the word – literally ‘veil search’ – was coined I am not sure.

Neusprech has now taken up the term. It refers to something called ein Verdachtsschleier – a veil of suspicion. The typical search takes place after vehicles have been seen crossing the border and are followed and stopped inside the border.

Das ist eine Suche auf gut Glück, bei der Menschen gerne allein deswegen schikaniert werden, weil sie fremd aussehen und bei der jeder zum Verdächtigen wird. Der Ausdruck S. lässt dabei offen, ob hier Bösewichte entschleiert, oder ob umstrittene Überwachungen verschleiert werden sollen. Die Fakten sprechen für das Letztere. Denn die S. hat weder etwas mit Fahndung noch mit Schleiern zu tun und vernebelt, dass hier Menschen grundlos durchsucht und ihrer Freiheit beraubt werden.

It’s sometimes translated by the term dragnet, but that means searching a large area thoroughly searching for one particular person. It appears the word dragnet reminded some translators of the word Schleierfahndung, but it doesn’t work like that!

More in the Alternatives Wörterbuch:

Herkunft: gegen Ende des 20. Jh. vom Frankfurter Strafverteidiger und Bürgerrechtler Dr. Sebastian Cobler geprägter Begriff; Schleier: Bed. in diesem Zusammenhang ungeklärt, wohl von der Idee her, dass keine spezifische Fahndung, sondern eine Art verdeckte oder eben „verschleierte“ Fahndung in Form einer allgemeinen Fahndung durchgeführt wird {Spek. FAL}; Fahndung: in der Bed. von „polizeiliche Suche nach Verdächtigen“, zu fanden, wohl aus dem Niederdeutschen, von mniederd. vanden = aufsuchen, besuchen

The pilcrow’s partner in crime: §

Keith Houston, of the Shady Characters book, turns his attention to the section symbol.

I’ve always known it as the section sign, or section symbol; Robert Bringhurst (The Elements of Typographic Style)[1] and Theodore Rosendorf (The Typographic Desk Reference),[2] my go-to typographic references, agree. It seems odd, though, that this eminently shady character has no other name. Have you come across any other names for the pilcrow’s partner in crime?

It’s called the paragraph sign in German, and it symbolizes law. It’s used in US statutes too, but there called the section symbol.

The commenter Erik writes:

It’s a symbol I used heavily (as a mathematical symbol) in my PhD thesis, and many other people who use it in the same way I did referred to it as “paragraph” which always drove me nuts because to me, the “paragraph symbol” is the pilcrow. But sadly that name is out there. I always called it the “section symbol”.

Typography for Lawyers reminds us to use a non-breaking space after these symbols.

On the book:

If Eats, Shoots & Leaves whetted your appetite on the subject of punctuation, then you have a treat in store. Shady Characters is an authoritative, witty, and fascinating tour of the history and rationale behind such lesser known marks as the ampersand, manicule, the pilcrow, and the interrobang. Keith Houston also explains the octothorpe — otherwise known as the hashtag — and my final comment on his book is #awesome.
Ben Yagoda, author of How to Not Write Bad

Leading decision/Grundsatzentscheidung

It’s been widely reported today that Haribo (which markets a sweet called Goldbär – gold bear) won in a case against Lindt Sprüngli, which has been introducing a gold-foil-wrapped bear for Christmas. The court in Cologne held that people would refer to the Lindt product as ‘gold bear’, thus diluting the mark into which Haribo has pumped huge amounts of money in advertising. (No, commenters, the court did not say that people could not tell the difference between a ‘gummy bear’ and a chocolate bear). Die Welt (German):

Denn die meisten Verbraucher werden laut Gericht den “Lindt Teddy” naheliegenderweise und ungezwungen als “Goldbären” bezeichnen – und eben nicht als Teddy”, “goldene Bärenfigur”, “goldfoliierten Bär” oder als “goldfarbenen Schokoladenteddybär”.

Haribo konnte auf die Umfrage eines unabhängigen Meinungsforschungsinstituts verweisen: 95 Prozent der Verbraucher würden die traditionsreiche Wort-Bildmarke “Goldbär” kennen.

The Local (English):

But the judges said that shoppers were likely to refer to the Lindt product as a “Gold Bear” because of its appearance and thus dilute the Haribo brand.

“Most consumers would not use descriptions such as ‘golden bear figure’, ‘gold foil-wrapped bear’ or ‘gold-coloured chocolate teddy bear’… but rather the closest description, particularly considering how well-known the other brand is: Gold Bear,” it said in a statement.

The decision isn’t final – Lindt will be appealing. It was commented that this particular point of law – whether a word mark can be diluted by the appearance of another mark – has not been decided by the highest courts (höchstrichterlich), or that there has not been a fundamental decision (Grundsatzentscheidung).

Die Welt:

Eine höchstrichterliche Rechtssprechung gebe es zu einer solchen Kollision nämlich noch nicht, erklärte das Kölner Landgericht.

The Local:

“What is special about the case is that there has been no high court ruling on the issue of a collision between a brand name and a three-dimensional product design,” it said.

That is very American. It’s common in the USA to refer to the Supreme Court as the ‘high court’.

I’m not sure if the highest court here would be the Bundesgerichtshof or the Bundespatentgericht. At all events, to call such a decision a ‘landmark decision’ would not be correct. What is meant is a binding decision – not that Germany has an official system of precedent, but in practice it seems like that. A landmark decision is one that makes the news in a big way.

LATER NOTE: Guardian article – with mug shots of the two bears.

Judgment and judgement

It’s not a secret that UK legal usage prefers the spelling judgment (Urteil) and general usage judgement (Urteilsvermögen).

I do sometimes wonder about mixing spellings in one text, but not so Lord Neuberger:

Judgments are the means through which the judges address the litigants and the public at large, and explain their reasons for reaching their conclusions. Judges are required to exercise judgement – and it is clear that without such judgement we would not have a justice system worthy of the name – and they give their individual judgement expression through their Judgments. Without judgement there would be no justice. And without Judgments there would be no justice, because decisions without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible. Such accessibility is part and parcel of what it means for us to ensure that justice is seen to be done, to borrow from Lord Hewart CJ’s famous phrase.

I’m not sure about the capitalization of Judgments.

The source is the first annual BAILII Lecture on 20 November 2012 , No Judgment – No Justice.

Via Binary Law

LATER NOTE: for more detail, commentary and links, see Peter Harvey’s post.