Two newish weblogs on teaching legal English:
Legal English Teacher by Andrew Nathan in Warsaw, and
Anglaw Budapest by Jeremy Wheeler.
Legal English blogs/Blogs zur englischen Rechtssprache
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Tag Archives: law
Legal entity/Legaleinheit
I wrote about legal entity earlier.
Now Professor Noack of Unternehmensrechtliche Notizen points out that the term Legaleinheit is creeping into German.
Google nennt immerhin ca. 1 600 Treffer, der Duden kennt das Wort noch nicht, ebensowenig die juristischen Lehrbücher. Mir ist der Begriff auch erst so richtig aufgefallen, als ich die Einladung zur außerordentlichen HV der Deutschen Telekom AG las: “Zur Steigerung der Wettbewerbsfähigkeit sollen T-HOME und T-MOBILE in Deutschland in einer Legaleinheit zusammengeführt werden.” Dann wird erläutert, dass Vermögen im Wege der Ausgliederung auf eine GmbH übertragen werden soll.
(There are c. 1,600 ghits; term is not in Duden or German law textbooks. In an invitation to an extrarodinary general meeting of Deutsche Telekom, it is used to refer to a GmbH after a merger).
It seems to me that they could often use Gesellschaft to refer to a new association of persons. Gesellschaft means either company (US corporation) or partnership. Legal entity works quite well for this in English, or it would if people didn’t so often use it to mean a company (legal person).
On the whole, the term seems to be used by people who don’t quite understand what they’re writing:
Die LWSG existiert weiter, allerdings mehr oder weniger nur noch auf dem Papier als so genannte “Legal-Einheit”, das heißt als juristische Firma, aber ohne eigene Geschäftsführung.
(This relates to Evonik, who seem keen on the term elsewhere too).
Definitions found on the Web:
rechtliche Person
rechtlich eigenständiges Unternehmen
Links
Current news from the EU: Presseurop site launched. Translations of news from various national papers, available in ten languages. Some of it has that airless translatorese feel of the Lufthansa in-flight magazine.
Nothing for Ungood is being translated into German and coming out as a book in December. No wonder we haven’t been getting enough to read on the site.
Trier University has links to strange cases from the USA and Germany. Lawhaha: Strange Judicial Opinions Lawhaha auf Deutsch
IEL 4: English law/Englisches Recht
Introduction to English law for translators and/or non-lawyers
This is the fourth in an occasional (very occasional) series of updates of my teaching material.
All entries have the tag IEL (introduction to English law – for translators).
This is intended to be a ‘bare bones’ introduction, and there is a conflict between simplicity and accuracy.
The topic is the meaning of English law. I am avoiding the term common law, which has even more meanings and is the topic for the next entry.
1. First of all, when did it start?
The easiest answer is: some time after 1066, when William the Conqueror laid claim to the whole of England as the successor to the crown. Under his successors, the legal system intended for the whole of England spread out over most of the British Isles (but not Scotland – Scots (or Scottish) law developed separately and is quite different from English law).
(1066 is both too late – there was no clean break from pre-1066 law – and too early – the centralized system of law did not really bite until into the 12th century.)
Before 1066 there were local courts, from which the local barons earned money. They continued after 1066 but gradually became less important. From 1066 on, William I introduced a central system of courts in London, with jurisdiction over the whole country. Through travelling judges, it spread out to the provinces. But the main work of developing the law was done after William I.
2. Today, English law means the law of England and Wales. The UK has one parliament, but three legal systems: for England and Wales; Northern Ireland; and Scotland. The House of Lords is the highest civil (not criminal) court of appeal for England, Scotland and Northern Ireland. Some Acts passed in Westminster apply to Scotland too, some apply in part to Scotland, some apply to Scotland only. On top of that, Scotland has its own parliament now, and some domestic Scottish matters have been devolved to it (education, health, agriculture and justice). Lawyers qualify in one of the three jurisdictions.
English law was exported to colonies and became the basis of the legal system in nearly all of the USA (not Louisiana), Canada (not Quebec), Australia and so on. It is also the basis of law in the Republic of Ireland. The law of most US states is based on the law of England up to the 18th century. US lawyers still study old English cases, and even cases decided after 1776.
English law has been developing for a period of over 1,000 years. It has evolved gradually, especially through the decisions of judges. There has never been codification, although some statutes have codified smaller areas of law (for example, Sale of Goods Act 1893/1979).
German-American Day Blawg Review
Andis Kaulins’ blawg review for German-American Day, recently mentioned here, has now appeared.
There are a large number of links on matters German, some of them German and law, for example the German American Law Journal (note in its English version an entry on an article by Dr. Jessica Ohle on Recent Trends in German Employee Compensation. And let’s not forget the similarly-named German Law Journal, another excellent resource.
Scroll down (passing the non-German law links) for a large number of further transatlantic links.
Famous German-Americans are mentioned, although not including the three famous bankers from Franconia: Lehmann, Goldmann and Sachs.
Drei Banker von Weltruhm – alle drei waren sie Juden, die keine Perspektive mehr sahen in Unterfranken, Mitte des 19. Jahrhundert. Keine Zukunft, kaum Spielraum – die Gesetze für Juden waren hier sehr streng. Jüdische Bürger konnten sich nicht einfach niederlassen oder heiraten, wenn sie wollten. Sie durften keinen Beruf erlernen. Zahlen mussten sie aber – Steuern und Sonderabgaben für alles und nichts. Heinrich Lehmann, Marcus Goldmann, beide Söhne von Viehhändler, wollten so nicht leben.
Les juridictions des États membres de l’Union européenne
This publication on the EU judicial systems is available only in French, either as a book or as a free PDF file.
It’s so wonderful that the EU lets us all read things in our own languages.
(Via ComparativeLawBlog)
MoMiG
Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen MoMiG
Suggestions encountered:
Law for the Modernisation of the German Limited Liability Company Law and the Prevention of Misuse
Law for the Modernization of the Private Limited Companies Act and to Combat its Abuse
Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses
I prefer the third one, which is from the Bundesjustizministerium. They might write ‘modernize’, but a lot of people seem to think ‘ise’ is de rigueur in the EU. Did the first two really confuse Recht with Gesetz, or was it an earlier title?
The German Law Journal has a special issue on the topic (no. 9 for 2008, if you read this later).
One of the probably most groundbreaking – and at the same time also most contentious – issues of the German reform of private limited companies by the Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen (MoMiG – Law for the Modernization of the Private Limited Companies Act and to Combat its Abuse)[1] is the introduction of the Unternehmergesellschaft (UG – Entrepreneurial Company). This new sub-type of the Gesellschaft mit beschränkter Haftung (GmbH – Private Limited Company) is specifically designed for entrepreneurs and has already unofficially been dubbed the “Mini-GmbH” and “GmbH light”. It can be seen as the centerpiece of the legislator’s overall aim to facilitate and accelerate the formation of companies and the underlying motive of increasing the international competitiveness of the German GmbH.
Such toe is all right now/Nachahmung in der Rechtssprache
Some Germans – lawyers or translators – can write really good legal English but tend to be more Catholic than the Pope (päpstlicher als der Papst) when doing so.
I’m reminded of this by the (new) legal writer’s quote in his latest entry:
“Much bad writing today comes not from the conventional sources of verbal dereliction—sloth, original sin, or native absence of mind—but from stylistic imitation. It is learned, an act of stylistic piety which imitates a single style, the bureaucratic style I have called The Official Style. This bureaucratic style dominates written discourse in our time, and beginning or harried or fearful writers adopt it as protective coloration.”
—Richard A. Lanham, Revising Prose vi (3d ed. 1992).
(This is quoted from Garner’s Usage Tip of the Day, which I don’t receive).
That refers to native English speakers writing English, who have less excuse, of course.
Particular features of this hyperlegalese:
use of said and aforesaid where it adds nothing
use of such instead of this/these
Here’s a site that objects to it too (Alabama Legislative Reference Service):
Rule 10. Use of “Such”
Do not use “such” as a substitute for “the,” “that,” “it,” “those,” “them,” or other similar words.
Example: “The (not ‘such’) application shall be in the form the court prescribes.” Use “such” to express “for example” or “of that kind.”
overuse of shall. I quote an example from Butt and Castle on Modern Legal Drafting:
If the Vendor shall within one month of the receipt of such notice give written notice (If the Vendor … gives would suffice)
Here is Todd Bruno of Louisiana State University, quoting Gerald Lebovits:
About said, as in aforesaid, Justice Smith asked whether one would say, “I can do with another piece of that pie, dear. Said pie is the best you’ve ever made.” About same, he asked whether one would say, “I’ve mislaid my car keys. Have you seen same?” About the illiterate such, he asked whether one would say, “Sharon Kay stubbed her toe this afternoon, but such toe is all right now.” About hereinafter called, he asked whether one would say, “You’ll get a kick out of what happened today to my secretary, hereinafter called Cuddles.” About inter alia, he asked, “Why not say, ‘Among other things?’ But, more important, in most instances inter alia is wholly unnecessary in that it supplies information needed only by fools …. So you not only insult your reader’s intelligence but go out of your way to do it in Latin yet!”
See also the Legalese Hall of Shame.
Digital thieves/Die (englische) Sprache des Urheberrechts
The Guardian recently had an article entitled Digital thieves swipe your photos – and profit from them.
Pedantic readers were having none of this theft terminology. Hence yesterday’s technology blog post: What’s the right way to talk about copyright stuff?
The aggrieved reader wrote (in part):
“I only read the heading and subheadings of this. For god’s sake, at least use the correct terminology. The photographs in question simply are not being stolen. They’re being copied. No thieves in existence there, but copiers. Illegal copiers I’m sure (whether it’s a good idea for so many things to be illegal to copy or not is another issue). You’re not helping us nor yourselves by perpetuating this kind of BS. The party who initially has possession of the item in one case no longer has the item, and in the other, does. That’s a big difference. That’s why we have different words with very different meanings to describe the two fundamentally different situations. But you’ve got them mixed up. And helped other people get them mixed up too.”
There is an attempt to fight a rearguard action from the legal point of view, but after all, a bit of polemic must surely be permitted, and the latter would be the better argument.
Comment by the author, Charles Arthur:
@ParkyDR @nickholmes: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.”
Surely the property here is intellectual property, which courts have construed as existing in the same way that physical property does.
The “permanent deprivation” is of the opportunity to sell it (or prevent it being sold).
The Theft Act says that property ‘includes money and all other property, real or personal, including things in action and other intangible property’ – but the things in action have to be capable of appropriation.
(Dietl: chose in action (einklagbares) Forderungsrecht; obligatorischer Anspruch (der Gegenstand einer Klage sein kann); unkörperlicher Rechtsgegenstand (Wechsel, Sparguthaben, Patente, Urheberrecht, Versicherungspolice, Rente etc))
Comment by AlexC:
As a former copyright lawyer, I think “theft” is *technically* the wrong word. But then most people don’t understand the technical meaning of “theft”, so what does it really matter?
As a matter of general practice, the term “copyright theft” has been around for quite a while – e.g. at the cinema you will see anti-piracy adverts from a group called the Federation Against Copyright Theft (“FACT”).
The legal offence of copyright infringement and the legal offence of theft are so analagous that they fall within the same linguistic term “theft” in piracy-type situations.
Now, for some real fun, we could consider whether the tort of copyright infringement is analagous with the tort of conversion…
LexMonitor
LexMonitor is a sort of US blawg portal, like JuraBlogs on steroids. As reported by Kevin O’Keefe in Real Lawyers Have Blogs, it has just ‘soft launched’ (seems to mean launched in a beta version).
LexMonitor is a free daily review of law blogs and journals highlighting prominent legal discussion as well as the lawyers and other professionals participating in this conversation.
Pulling from nearly 2,000 sources and 5,000 authors, LexMonitor will hopefully shine a light on the ongoing conversation among thought leaders in the law for the benefit of the legal profession and the public at large.
Like putting in the sidewalks on a college campus after watching where the students leave paths, we’ll refine the site and add features based on how it’s used and the feedback we receive from you.
Clicking around, I found a translation company blog on Translation for Lawyers – here.