 |
| [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.
* Picture captions allow the blind to fully access the Internet.
No comments:
Post a Comment