Highly civil law – the other approach to contract law

 

[Man looking through a telescope*]'

Sometimes a person visits another family or country and discovers that an alternative way of doing something actually has many advantages. That was my feeling after an amazing two-hour webinar by Thomas West on Russian legal translation organized by the American Translators Association. I knew that the civil law system had different procedural elements as compared to the common law system However, his lecture opened my eyes to an entirely different manner of approaching contracts, which I have to admit has much virtue. The lecture also suggested ways for lawyers and translators to bridge between these two worlds to the benefit of their clients.

Before discussing contract elements, it is important to understand the differing bases of common law and civil law. Common law began in England and spread to its colonies and territories, including the United States. Under this system, while the legislature may set broad guidelines on policy on a given legal matter, the courts through their decisions define the specific elements. In the United States, due to its federal structure, each of the fifty separate states could theoretically have a slightly different interpretation, limited in practice by decisions of the US Supreme Court and rules of the Universal Commercial Code in certain matters. In practice, legal interpretation does vary significantly in the United States, requiring specialized knowledge by lawyers of practices in specific jurisdictions. Furthermore, under common law, an enforceable contract requires an exchange of consideration, i.e., each side actually has to promise to give the other party something of value. Accordingly, the declaration that one person will give a gift to another person has no legal standing as the receiving party has promised nothing in return. By contrast, the civil system, which is the accepted system throughout Europe, including Russia, involves a set of specific rules written by the government in explicit codes, most famously “the Napoleonic code”. Under this system, judges apply the written rule to the cases, generally acting as the investigator in order to match the facts to the rule. The civil law system is far more rigid and standardized.

Mr. West discussed contract law in Russia but mentioned similar frameworks in Europe, including France. He pointed out that the Russian civil code defines the conditions of 26 specific contracts, including leases, cargo and insurance, as well as determines the general conditions of all contracts. These terms may either be negotiable, i.e., the parties can agree otherwise, or mandatory, i.e., elements that cannot be waived. Curiously enough, civil law does recognize some gift contracts even when the other party does not provide consideration, some kind of compensating return. Thus, a civil law contract must only include those elements that are specific to the matter with the assumption that applicable civil code applies to all other matters. It is clear that European contracts can be much shorter and still provide sufficient coverage.

For attorneys and clients, this codex system radically simplifies life. Any individual seeking specific information about a term can consult the section on the specific type of contract in the codex, which generally has an official translation to the major European languages, and then compare it to the actual terms. For example, a contract that has no ending date of effectiveness is considered unlimited. It is also possible to write a contract that only partially relates to an existing form or even not at all. By contrast, an American plaintiff or defendant must consult a local attorney to ascertain how the relevant court will interpret a given term, who may not be able to provide an absolute answer. Flexibility has its price

For translators, this difference in approach creates terminology issues. For American translators, it may be possible to use terminology from Louisiana, which has some civil law elements, but Mr. West strongly advised avoiding this solution as most attorneys, not to mention their clients, are completely unfamiliar with this terminology. He suggested “nominate”, “innominate” and ’mixed” for contracts to distinguish those contracts specified in the code from those that are not. For contracts without consideration, he suggested ‘enforceable without valuable consideration”, which is clear, albeit a bit wordy. In any case, in order be thorough, legal translator may also need to consult the relevant codes for clarification.

The webinar also discussed language choice issues specific to Russian, which I found very illuminating in both confirming some of my previous terminology choices and correcting others. Beyond the technical matters, Mr. West’s webinar removed my culturally myopic disdain of civil law systems and allowed me to see the beauty of another approach. I am grateful not only for the knowledge I received but also for the perspective he provided. There is nothing like having your world expanded.

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Thing One, Thing Two, Thing No – a mild diatribe about the use of thing in writing

 

["Nothing"*]

I teach English writing to first-year engineering students in Israel. As their written communication skills in their own language are limited, partly as a result of the adopted European policy to completely separating humanities from sciences as if science people do not need to write, I assume no prior knowledge of writing and teach the basic rules of sentence writing and paragraph organization as well as a few tips on vocabulary. Among them, I tell them that I will not accept the use of the word “thing” and even deduct points for it. This insistence may sound extreme at first glance but one major distinction between speaking and writing is that in the latter the writer has the privilege and duty to carefully consider each word and choose precise terms, which almost always exist in English. My approach is similar to “thing”’s cousins, something and nothing but these words may be appropriate in certain cases.

The justification for being so particular in assessing writing skill is that the process of writing involves not only the initial expression of the thought but also the further refining of its form. As the expression says, there is no good writing, only good rewriting.Readers do not want to read a first draft and naturally expect a carefully phrased text. While true for all languages, English requires extra polishing due to the plethora of language roots that have been integrated, often rather violently, into the language. From Gaelic to Germanic to French Latin and ancient Greek, English is the Frankenstein of world languages, rather imposing but a bit ugly, to the ear at least, as compared to more homogenous languages such as French, Italian, Hebrew and Russian, to name a few. Thus, to produce diamond of a text in English requires effort (and why I appreciate the prose of George Orwell). Furthermore, aside from emotions, English has a word for almost every existing object, especially in science, making it possible to use the precise term. Given the multitude of roots, many of the vocabulary options are far from high-falutin, with the average 11^th grade able to understand if not necessarily spell them. Thus, it is appropriate to demand that writers of English, both native and non-native, use an exact term.

The word thing implies around 325,000 terms as well an additional 375,000 technical terms, according to Dr. Google. As an example, the phrase “things” can be replaced, as relevant, by reasons, excuses, factors, elements, data, objects, feelings, results, causes, effects, events, products and facts, to name just a very few that most English users would recognize and be able to use. As for specific technical terms, people specializing in a specific subject area need to know the exact word in order to express their ideas accurately. In some cases, this precision is a matter of life and death or at least large sums of money. Given the privilege of being able to refine a text before showing to the audience, as compared to spoken language, it is brazenly lazy to write thing unless a person is writing for small children.

As for something and nothing, the same statement is true with some exceptions. A given company may have something special about it but the investor would like to know whether it is the marketing strategy or actual product. There may be nothing you can do about a situation when speaking but somehow having no solutions sounds much more impressive in writing. Granted, if the attribute is so ethereal that a person cannot identify its attributes, something may be appropriate as James Taylor sings: “Something in the way she moves”. Of course, mathematical zero is nothing as Billy Preston noted in “Nothing from nothing leaves nothing”. Sometimes there simply is no precise word to describe all the items as in “These are a few of my favorite things” of Sound of Music fame. So, I never say never and occasionally accept these things.

Fairly or unfairly, people heavily judge writers of English by their choice of vocabulary. Clearly, non-native writers have a lower bar in term of vocabulary choice but that allowance does not waive the requirement to use precise, albeit simple, words when preparing a written text. Clearly, things lead to chaos as Dr. Seuss so well described in this book. However, even he added a number to the shirt of his things to specify them. Proficient writers should have no things.

 

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Notes of a non-native parent

 

[Parent and child trying to comunicate*]

The immigrant experience has many aspects and layers. One area in which even long-term immigrants feel like “a stranger in a strange land” (to quote Heinlein) is parenting. Immigrant parents are often at a loss what to do in their adopted culture. More significantly, their children discover that fact very quickly. This lack of clear hierarchy changes the nature of interaction with our children and affects parental roles.

As an example, I have an American father and French mother, grew up in the US and have lived in Israel for some 33 years but came here as an adult. I was fortunate to marry and raise a daughter here, now 25 years old. She and I just took our annual camping trip on the Dan river in northern Israel and ran into a problem of an absurd rule at the site, a bit like Woody Allen’s executive order to speak Swedish in Bananas. My daughter told me to let her handle it and negotiated/argued with management until it agreed to ignore the rule. I, her father, sat back and watched her, knowing that she is far more skillful in navigating Israeli waters than I am. Facts are facts but, somehow, it does bother the parental ego. Considering my position as a non-native father, I see how my foreignness has impacted issues of language and culture but also enriched our lives.

Coming from four generations of immigrant parents, my family having a tendency to change countries for one reason or another, I was always aware of language discrepancies. Specifically, children at a very young age often already  speak more accurately than their parents and have no compunction in correcting them. My daughter from the age of 8 already noticed my mistakes. Today, despite my rather rich Hebrew, she handles voice and digital communication, i.e., phone matters with authorities and services of all kinds, when we are together. I have to admit that she is far more efficient and effective although I do believe that I can communicate the issues. One obstacle may be that people worldwide assume having an accent means that the person is stupid, to be blunt, with the possible exception of Henry Kissinger and Einstein, who sounded and were considered quite intelligent. As the adult in the equation, immigrant parents have to accept that their children speak and write better than they do regardless of the fact that it somehow reduces their personal standing. I suppose that my daughter’s occasional grimacing at my Hebrew is due punishment for my making fun of my mother’s pronunciation mistakes. There is some kind of ultimate justice, albeit even slower than the human justice system.

On a more insidious note, not having grown up in a culture as a child means that an immigrant does not fully understand the unspoken code of behavior. Cultural rules of communication are so complicated that adult analysis is insufficient in terms of attaining full assimilation of the code. In some ways, immigrant parents cannot shed all elements of the old country. For example, all communication involves explicit and implicit elements, including message, seriousness and ultimate intent. Not having grown up in Israel, I tend to misinterpret how much bluff there is in Israeli conversation and how “flexible” rules are. In terms of negotiating bureaucracy and attaining goals, it is fortunate that both my wife and daughter are “locals” but in terms of self-respect, it is not always easy on the pride. As an extreme example, older Ethiopian males that immigrated to Israel have suffered greatly from the loss of the prestige they held in their native society as they neither understand the language or culture of their new country and are entirely dependent on their family, even to read a letter. This cultural deficiency potentially has a far greater impact than the language issues.

Yet, in many ways, this dialogue between immigrant parent and native child is an enriching experience. Children expose aspects of the adopted world as they go through their journey from infancy to adulthood. These aspects include songs, beliefs, behaviors and special events, all experienced vicariously. In the other direction, immigrant parents imprint on their children a knowledge of worlds and morays that may not always fit their native society but serve them well in other places. I am proud to say that my daughter is far more polite and, in many ways, more confident than many of her peers, knowing the importance of saying thank you, respecting her elders, if only on the basis of their age, and with less gender-defined limits. Her world view goes far beyond the small world of northern Israel. She is aware of the relatively free world of Los Angeles in terms of behavior and sense of style that is France, including shops with smelly cheese. This knowledge probably means that she too will become an immigrant parent but that is her choice. The foreign culture I imprinted on her at least has given her a choice in life, a problematic gift but nevertheless a rich inheritance. We both have profited from our cultural exchange.

Clearly, there is a very high number of households with at least one immigrant parent worldwide with each having its own personal story. Still, clearly a foreign parent creates a different house and world view as compared to a native one although not necessarily an easier experience. As both such a child and parent, I can say that, while there is a price, especially in childhood, for growing up “different”, the cross culturization is an enriching experience. I would not have it any other way even if I have to let my daughter sometimes do the talking for me. Such adjustments are all part of the immigrant experience.

 

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Cleaning costs – the uniqueness of editing

 

[text with editing marks*]

Certain tasks are standardized in terms of process and price. For example, an oil change essentially involves the same materials and time almost regardless of the actual car model and mileage. By contrasts, others, including house cleaning and language editing, involve unique situations in terms of initial situation, personal skill and purpose, rendering it impossible to state how long the task should take without knowing all facts. Thus, for such processes, the service provider, needs to carefully consider all factors before providing a quote while the service buyer should not expect a standard rate.

While I will be discussing specifically language editing, I will first compare it to a more common service, house cleaning. The issue of how long it should take to clean a flat of 100 m² (1076 sq. f.) is actually quite complex. First of all, the first factor is the initial state of cleanliness and order. There is a marked difference between the condition of a flat that has been regularly cleaned as compared to one on which the contractors have just finished renovation. It can range from 2 hours to 1 full day even. I say that from experience. Likewise, cleaning workers vary considerable in their skills and speed. Speed and quality are often but not necessarily related, meaning slower work sometimes translates into more thorough results. Finally, the required time is often dependent on the desired result. Making the place livable, preparing for a visit from your mother-in-law and staging the house to put on sale require a significantly different level of finishing. The more polishing, literal and figurative, the more time is needed.

Editing, a form of cleaning if you look at it from a certain point of view, is similar. First, no two people write the same way, have the same knowledge or spend the same time of time and effort in preparing the text. On one extreme, quite rare, are skilled writers seeking a second pair of eyes to identify any remaining minor issues. In this case, the editor has very few mechanical issues to deal with and serves essentially as an important final QA check. On the other extreme are texts written by non-natives that may not know how to write properly in their own language let alone the language of the text. They are wise enough to recognize that the text is unacceptable and needs to be revised. In this case, the task of the editor is far more comprehensive, involving identifying grammatical and syntactical errors, rephrasing ideas and even sometimes reorganizing whole sections. This process involves multiple readings, ideally with each run-through focusing on specific issues. The time investment is significant in terms of the ratio between time and words.

Clearly personal approach affects the amount of time required for editing. Editors vary in the speed in which they process text, with some quickly identifying errors while others working slowly to fully analyze the text. There is some connection between thoroughness and speed, i.e., slower editors catch more issues on a given read-through than faster editors but additional directed readings can compensate for any shortcomings.  Likewise, editing requires concentration. While a few people can maintain full focus for long periods of times, most editors require various frequencies of breaks in order to maintain their focus. The longer the text, the greater the impact of these necessary breaks. To put it simply, it is essentially impossible to read 10,000 words in one reading session. Not all editors are created equal.

Finally, different text purposes involve different levels of polishing, radically affecting editing time. On the fast end of the scale, if a document is an internal document distributed to a limited number of persons, the language must be clear and accurate but it does not have to be particularly elegant. A document with a large and/or potentially wide audience, such as a published article may affect perception of the party ordering the editing and should reinforce a positive image. Finally, editing documents intended to persuade must go beyond correct language and effectively express the intended message, which sometimes involves transcreation, i.e., completely rewriting of the text, a creative and long process. Such documents include sales material and website text. Thus, the editor needs to know the purpose of the document in order to estimate the required level of polishing and time.

Curiously, industry standards range from 1000 to 2000 words per hour. However, as explained above, “standards” are not relevant for editing. In practice, each document is unique and quoted according to its base level, the required skill of the editor and the level of polishing needed. When editors do not take these factors into consideration, they often find themselves selling themselves short and unable to take on further work due to extended time on the current project or produce inferior work. Editing purchasers should appreciate a carefully produced price proposal, understanding that an editor that invests time to understand its texts and meeting its needs will probably produce a desired result. Since every text, every circumstance and every editor are unique, so will be the costs of editing. One size does not fit all.

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