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Explanation: Another way of looking at it and MY stock ProZ ES/IT/FR/DE-EN answer from the Paris/Madrid satellites of a City of London law firm - which the asker seems to have picked up. Thanks for the acknowledgement!
A judge or a lawyer from Roman civil law systems (Scotland, France and Romania etc.) is weaned on a diet different to those from English Common Law systems (England, Ireland, US & Oz etc). You must have studied or practised in both systems as well as relied on reference books like Contract and Guarantee templates and precedents. So it is hard to understand what the problem is.
Don't take it so personally, Go see the reference book (one of many). But then again, it is just my opinion, no intention to create a debate. I just wanted to say that it exists and it is used. Just that. And yes, I would not presume to be more in the know than a judge or a lawyer. That's all.
I already gave you a book for reference. I don't think a judge will ask a translator/interpreter on concepts of law. I think a judge will rather go read Mr Black (author of the book I gave for reference) than ask the translator, don't you think? But I guess they have already studied that in school, way before becoming a judge.
Adrian MM. (X)
Lost in translation
18:48 Jul 23, 2015
Lawyers and judges from Anglo-Am. Common Law systems will want an interpretation of how the phrase works in practice. Perhaps you can give us an idea from your own legal practice.
How many cases have been lost/won on wording? Plus, I do believe professionals (lawyer) dealing with cases involving parties from other countries do have some knowledge about other legal systems, don't they?
Those who study the law, have. Go to google books: A LAW DICTIONARY CONTAINING DEFINITIONS OF THE TERMS AND PHRASES OF AMERICAN AND ENGLISH JURISPRUDENCE, ANCIENT AND MODERN - by Mr. HENRY CAMPBELL BLACK, M.A.
Adrian MM. (X)
@robbp
18:30 Jul 23, 2015
Leave the interpretation to the lawyers and courts of the Anglo-American Common law systems..... A fundamental misconception. The benefits of discussion and division are Roman or Romanian civil-law terms. In 45 years of the law, I have never seen these expressions in English law contracts or guarantees.
it doesn't matter what it means, be it benefit of division (beneficium divisionis) or benefit of discussion, leave the interpretation to lawyers and courts. They are both legitimate terms, appearing in law dictionaries (not bilingual, I mean legalese explained in English by English experts)
Accepted, but most of the references I got under google are canadian. It certailnly doesn't seem to be common even in the US and my reservations related whether it will actually be understood by the client. Perhaps the use of a footnote might be useful. Have a nice sunday, I'm off to the garden
That sounds like it might be right, primary looks good for waiver of ... discussion, but is suspect the otehr is joint and several liability - each individual surety can be made liable for the whole amount.
Yes; to Rebecca - I suspect so - it is joint and several liability ("division") but I'm not sure how you would express the idea of "discussion". The translation you suggest causes me difficulties in that I don't think it would be understood outside the Canadian context, but I'm happy to be proven wrong.
So, in this example, the guarantor is acknowledigng that the creditor can come after him alone if the principal debtor fails any of the terms of the loan? So he is giving up the right to have all co-sureties pay if the lender enforces the debt?
Not exactly - the waiver of these rights means that the creditor is not required to take measures against the principal debtor and that he is not required to measures against any co-sureties either - which ultimitaly means that the one surety will be liable for the lot. It's not just a question of f ailing to make payment, is a question of against whom the creditor is to enforce the debt.
B. de discussion means the surety's right to require execution to be directed against the principal debtor before execution is levied on the surety. Benefice de division means the right of one of a plurality of sureties that proceedings be directed against all the sureties (source: Council of Europe French-English Dictionary) - but a brief way of saying that in English?
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Answers
18 mins confidence: peer agreement (net): +1
benefits of discussion and division
Explanation: This is how it is translated in Canadian docs (see link), and you find the same term in US docs too...Don't know whether this helps...
Rebecca Davis United Kingdom Local time: 03:01 Specializes in field Native speaker of: English PRO pts in category: 28
4 hrs confidence: peer agreement (net): +1
Renonce expressément bénéfices de discussion et de division
Does hereby expressly accept personal and unlimited primary liability
Explanation: Another way of looking at it and MY stock ProZ ES/IT/FR/DE-EN answer from the Paris/Madrid satellites of a City of London law firm - which the asker seems to have picked up. Thanks for the acknowledgement!
Example sentence(s):
Primary liability refers to an obligation for which a party is directly responsible topics.law.cornell.edu/wex/primary_liability
Adrian MM. (X) Local time: 04:01 Specializes in field Native speaker of: English PRO pts in category: 348
Explanation: This is the English translation in the Code Civil.
Article 2298 (bénéfice de discussion)
La caution n'est obligée envers le créancier à le payer qu'à défaut du débiteur, qui doit être préalablement discuté dans ses biens, à moins que la caution n'ait renoncé au bénéfice de discussion, ou à moins qu'elle ne se soit obligée solidairement avec le débiteur.......
A surety is bound towards the creditor to pay him only upon the debtor's failure, whose property must be previously exhausted, unless the surety has renounced the benefit of seizure and sale, or unless he is bound jointly and severally with the debtor..........
Article 2303 (bénéfice de division)
Néanmoins chacune d'elles peut, à moins qu'elle n'ait renoncé au bénéfice de division, exiger que le créancier divise préalablement son action, et la réduise à la part et portion de chaque caution.
Nevertheless, each one, unless he has renounced the benefit of division, may demand that the creditor previously divide his action and reduce it to the part and portion owed by each surety.
Hazel Le Goff Local time: 03:01 Native speaker of: English PRO pts in category: 8
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peer agreement (net): +1
