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Couplets in legal English
Thread poster: Tim Drayton

Tim Drayton  Identity Verified
Cyprus
Local time: 13:13
Turkish to English
+ ...
Sep 30, 2009

Work has been slack of late so I have been studying legal texts in English in the hope of improving my knowledge of legal terminology.

It is an obvious point, I know, but I was suddenly struck by how much use is made of couplets - i.e. the use of two synonyms or near-synonyms where one term would be adequate - in legal English.

To quote a few examples:

without let or hindrance
goods and chattels
showed no remorse or contrition
waive and relinquish any and all right or claim
indemnify and hold harmless from any and all liability
bring and file suit
acquire and gain property

OK, so what is my point.

Well, I don't know about other languages, but Turkish legalese does not have this love of couplets, and in any case the language does not have so many synonyms or near synonyms for legal concepts. As a result, normally when I am translating legal texts from Turkish into English I will translate the single word or concept in Turkish using a single word or concept in English. The thought of using this kind of couplet has never even ocured to me. I might write "... distrain on the lessee's chattels" but would not think of writing "...distrain on the lessee's goods and chattels".

So I just wonder if these couplets serve any purpose that I am unaware of. Do the authors of such texts have a good reason for using them? Would I be better trying to introduce them into the translated texts I produce, just to give them a more authentic feel, if nothing else? I think not. I can see no point in this kind of repetition. Moreover, if we are charging on a target word basis, we could well be accused of trying to inflate the word count to boost our fee.

Or am I wrong?


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foghorn
English to Turkish
+ ...
terms and conditions Sep 30, 2009

i think some couplets are giving a feeling of water tightness but some do seem like mindless repetitions. “Şart ve koşullar” for “terms and conditions” (yes there are too many who does it) is a horrible example in Turkish.

of the examples in English;

waive and relinquish — i should say i could think of a model case where a lawyer might individuate … say.. 'I relinquish my seat to a paying customer despite I have not waived my rights yet' (of course, not as a matter of fact but as an inseparable but yet individual act).

good luck with your work!


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urbom
United Kingdom
Local time: 11:13
German to English
+ ...
conventional wisdom (or perhaps not) Sep 30, 2009

The conventional explanation is summarised here:
http://en.wikipedia.org/wiki/Legal_doublet

But Bryan Garner (a prolific writer on the subject of legal English) cites a number of sources which counter that reasoning.
See the entry on "Doublets, Triplets and Synonym-Strings" in his A dictionary of modern legal usage (entry starts on p.292):
http://books.google.com/books?id=35dZpfMmxqsC&pg=PA294&lpg=PA294&dq=legal_doublets_triplets_synonym_garner_dictionary_usage&source=bl&ots=k8tYTzsfL6&sig=nJLIxULF84ysGQ6N8DNuaQrU7bI&hl=en&ei=s2LDSriFKovM-Qa2ioDvCw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBAQ6AEwAA#v=onepage&q=&f=false

See also his Legal writing in plain English: a text with exercises:
http://books.google.com/books?id=PN_8vUWwXp0C&pg=PA43&lpg=PA43&dq=legal_doublets&source=bl&ots=dJ7TKjLWQr&sig=5ASNBqxU-H3HQnJhh28ouB_rq-s&hl=en&ei=7mHDSue0D4HR-Qau_ZTvCw&sa=X&oi=book_result&ct=result&resnum=7&ved=0CCoQ6AEwBg#v=onepage&q=legal_doublets&f=false

The book Legal Language by Peter Tiersma may also be of interest:
http://www.languageandlaw.org/LEGALLANG/LEGALLANG.HTM

In Britain at least, there seem to be efforts underway to use more accessible language in legislation, contracts etc. See e.g.
http://www.lawcom.gov.uk/unfair_terms.htm
"In 2001, the Department of Trade and Industry asked the Law Commission and Scottish Law Commission to rewrite the law of unfair contract terms as a single regime, in clearer and more accessible language."

(Edit: apologies for broken links above -- for some reason this board adds extraneous spaces when displaying very long URLs.)

[Edited at 2009-09-30 14:47 GMT]


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Derek Gill Franßen  Identity Verified
Germany
Local time: 12:13
German to English
+ ...
Legalese Sep 30, 2009

I will quote Wikipedia, because I tend to agree with what is written there on the subject:
Coverage of Contingencies

Legal writing faces a trade off in attempting to cover all possible contingencies while remaining reasonably brief. Legalese is characterized by a shift in priority towards the former of these concerns. For example, legalese commonly uses doublets and triplets of words (e.g., "null and void" and "dispute, controversy, or claim") which may appear redundant or unnecessary to laymen, but to a lawyer might reflect an important reference to distinct legal concepts.

(See http://en.wikipedia.org/wiki/Legal_writing .)


I also agree with what follows in Wikipedia, whereby a certain degree of precision—that may seem bloated to some—is sometimes actually necessary:
Plain-English advocates suggest that no document can possibly cover every contingency, and that lawyers should not attempt to encompass every contingency they can foresee. Rather, lawyers should only draft for the known, possible, reasonably expected contingencies; see Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 34 (ABA 2002).

(Also see, for example, http://www.plainenglish.co.uk/ .)




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jlrsnyder  Identity Verified
Canada
Local time: 07:13
Member (2006)
French to English
+ ...
I can't quote a reference, but Sep 30, 2009

I can't quote a reference, but it is my understanding, based on a story I heard on the radio years ago, that the practice got started in England after the Norman invasion. Since the language of those in charge was French and the language of the governed was "English" or a predecessor of English, legal documents used words from both languages, the 'couplets' you refer to, to make it perfectly clear to anyone who read the document, no matter what their linguistic background, just what was being discussed. Thus you have couplets like "free and clear", 'free' coming from an Anglo-Saxon root, 'clear' coming from a French or Latin root.
Right away a contradiction occurs to me: due and payable. Both words seem to come from French roots.
The use of French terms for words the ruling class would use as opposed to Anglo-Saxon words for terms the underclass would use also applies to food. The upper crust would be served poultry, beef, mutton, and pork at the table, these words being derived from French; while the farmers produced chickens, cows, sheep and pigs on their farms, these words being derived from Anglo-Saxon roots.
I invite other participants to provide documentation to refute or support these statements.


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Tim Drayton  Identity Verified
Cyprus
Local time: 13:13
Turkish to English
+ ...
TOPIC STARTER
Paid by the word Sep 30, 2009

Should have been doublet, of course, not couplet.

I quote the following without further comment:

http://legal-dictionary.thefreedictionary.com/Aid%20and%20abet

aid and abet v. help commit a crime. A lawyer redundancy since abet means aid, which lends credence to the old rumor that lawyers used to be paid by the word.


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Tim Drayton  Identity Verified
Cyprus
Local time: 13:13
Turkish to English
+ ...
TOPIC STARTER
Application to translation practice Sep 30, 2009

The discussion so far has been instructive, but we are not addressing the issue from the point of view of translation practice. If the source language does not generally use doublets in legal texts, do we create them in translating into a language such as English which uses them in abundance, or not? If the source language uses one word meaning 'cease/desist' do we:

1. use either 'cease from doing' or 'desist from doing' or

2. introduce the commonly used doublet 'cease and desist from doing'.

Of course, there is the equally valid question of, when translating from English into a language where doublets are not common, whether to replace them with a single word or to use two synonyms.


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Tatty  Identity Verified
Local time: 12:13
Spanish to English
+ ...
Just translate what is there Sep 30, 2009

My approach is just to translate whatever the original says and I wouldn't start inserting extra words just because English lawyers do, as your job is to translate not to redraft, it would only throw up a dodgy result anyway. Don't forget that lawyers have been trained in legal writing, you can't just pick it up by reading documents.

Aid and abet for instance have two separate meanings: aiding is giving help, support or assistance and abetting is any conduct which instigates or encourages the commission of a crime. But the name of the charge is aiding and abetting.

Chattels have a legal definition so goods may well refer to items that aren't covered by the legal definition of chattels.

Waive is a doctrine, and a certain situation may not be covered by the doctrine.

Indemnify and hold harmless, and terms and conditions - two different meanings in each case.

Desist and cease - desist can mean to refrain from doing something, ie not to do it in the first place.

While couplets should be given there literal meaning, sets of 3 or more adjectives include anything thereabouts too. So therefore, when translating a contract from English into a foreign language you should maintain all couplets and triplets if possible as the chances are that the contract will be constructed according to English law.

Null and void is another. Null refers to the consent given and void refers to invalidity by statute or at common law. Actually I do use this couple as I consider it to be harmless, but in other case they aren't.

[Editado a las 2009-09-30 20:14 GMT]


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urbom
United Kingdom
Local time: 11:13
German to English
+ ...
good advice ^^^ Oct 1, 2009

Tatty’s advice to "translate what is there" seems very sensible.

If you’re translating into English, chances are that (a) your translation will be used for information purposes only by one of the parties and it is the original document that will be authoritative; and (b) in the event of a dispute between the parties, the law of a civil law (as opposed to common law, as in England/US/Aus/Can etc.) jurisdiction would be applied.

Thus it would be inappropriate to try to make the contract "sound like" one written by an English or US lawyer – and as Tatty rightly points out, unless you’re a lawyer and have been trained in legal drafting, the results are likely to be pretty dodgy anyway.

The introductory paragraphs of this article: http://www.murdoch.edu.au/elaw/issues/v3n2/campbell.html (Lisbeth Campbell, "Legal Drafting Styles: Fuzzy or Fussy?") give a good explanation of the reasons for the differences between the typical legal drafting styles in the civil and common law systems.

More on this topic:
"How Do German Contracts Do As Much with Fewer Words?" by Claire A. Hill and Christopher King, Chicago-Kent Law Review, Vol. 79, p. 889, 2004
Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=596668

"Pitfalls of English as a Contract Language" by Dr. Volker Triebel (this is a presentation aimed at English solicitors, but legal translators can get something from it too):

http://www.syndikusanwaelte.de/pdf/jt_2006/Triebel%20-%20Pitfalls%20in%20English%20as%20Contract%20Language%20-%20Notes%20to%20Pr2.pdf

Accompanying ppt slides:
http://www.syndikusanwaelte.de/pdf/jt_2006/Triebel%20-%20Pitfalls%20in%20English%20as%20Contract%20Language%20-%20Presentatio3.pdf

(NB you'll have to copy & paste these entire strings into your browser -- all the way up to and including the final .pdf)


Apologies for the odd spaces in URLs that somehow manage to creep in after clicking Post Reply.


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Tim Drayton  Identity Verified
Cyprus
Local time: 13:13
Turkish to English
+ ...
TOPIC STARTER
One word in, one word out Oct 1, 2009

I would like to quote the concluding paragraph of a discussion for the benefit of lawyers concerning the difference between 'indemnify' and 'hold harmless':

http://www.adamsdrafting.com/2007/04/08/yet-more-on-indemnify-and-hold-harmless/

"So if my previous posts on the subject haven’t convinced you, let me say it again: use just indemnify, not both indemnify and hold harmless! And more generally, pick your words carefully instead of indulging haphazardly in redundant synonyms."

I am sorry, but I do not fully buy into the argument that since lawyers are very clever people they know much better than we ordinary mortals what they are writing, and when they use a string of synonyms in place of one word there must be a very good reason for it which we are not entitled to question. If I see that the emperor is naked, then I will shout this out at the top of my voice.

I certainly cannot accept that 'cease' and 'desist' are anything but synonyms. Their use together in the phrase 'cease and desist' is a futile exercise in redundancy. I can appreciate that lawyers framing agreements need to cover their rear ends so they prefer not to break with tradition and run the risk that some crusty judge will rule that the two words have different meanings and the word used in the agreement does not cover the eventuality in dispute.

I agree in principle with Tatty that it is not our job to embellish texts by introducing needless redundancy and will therefore continue to use only one word or expression if that is what the source text does.


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Jenny Forbes  Identity Verified
Local time: 11:13
Member (2006)
French to English
+ ...
Private AND confidential ? Oct 1, 2009

An interesting thread. I've often wondered about envelopes marked "Private and Confidential". Surely, something that is confidential must also be private? Are both words necessary?
I see the French are catching the "doublet" bug - I've found "gestion et management" in documents recently. What do they think "management" means, then? Heigh ho!
Jenny


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 12:13
Member (2005)
English to Spanish
+ ...
I agree: translate what is there Oct 1, 2009

Tatty wrote:
Just translate what is there

I entirely agree.

But also in both senses: If translating from English into another language, should the English text contain two terms for apparently the same thing, research the matter in detail as there could be slightly different meanings in English. If the meanings are exactly the same, use two synonyms also in the target language. This is the advice I got earlier this year during a legal translation seminar in Madrid with a main expert in the field who also teaches legal translation at several universities.


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Tatty  Identity Verified
Local time: 12:13
Spanish to English
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cease and desist Oct 1, 2009

It isn't desist and cease so argument about refrain isn't very convincing. But what about the situation where a party stops doing something for a certain period, for a year maybe, and then starts doing it again. I think desist would cover the second case scenario.

It is not that lawyers are more intelligent than laypersons it is just that some words already have an established legal definition and others don't, and you wouldn't have a handle on this unless you had studied law.

What's more, we want to avoid problems. In the case of indemnify and hold harmless it was held on appeal (2nd instance) that they meant two different things, and it may be that this was a wrong decision and that the correct approach would be to examine the intent of the parties, opening up the possibility of another appeal (3rd instance)!

So what out-of-English legal translators can draw from this is that the bog standard approach is the best: 2 adjectives mean different things, 3+ include near misses. If you are struggling to translate a string of 4 adjectives, provide at least 3 adjectives because the rule of construction kicks in at 3.

As for into English legal translators, it is widely understood that the "fuzzy" approach is favoured by civil law countries so skipping an adjective here and there probably wouldn't make a lot of difference. But to be able to make this assertion, you would have to know the rules of construction of the country in question.

Gestion can refer to administration, as in an MBA.


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Monika Elisabeth Sieger  Identity Verified
United Kingdom
Local time: 11:13
Member (2009)
English to German
+ ...
You are so right! Oct 1, 2009

Derek Gill Franßen wrote:

I will quote Wikipedia, because I tend to agree with what is written there on the subject:
Coverage of Contingencies

Legal writing faces a trade off in attempting to cover all possible contingencies while remaining reasonably brief. Legalese is characterized by a shift in priority towards the former of these concerns. For example, legalese commonly uses doublets and triplets of words (e.g., "null and void" and "dispute, controversy, or claim") which may appear redundant or unnecessary to laymen, but to a lawyer might reflect an important reference to distinct legal concepts.

(See http://en.wikipedia.org/wiki/Legal_writing .)


I also agree with what follows in Wikipedia, whereby a certain degree of precision—that may seem bloated to some—is sometimes actually necessary:
Plain-English advocates suggest that no document can possibly cover every contingency, and that lawyers should not attempt to encompass every contingency they can foresee. Rather, lawyers should only draft for the known, possible, reasonably expected contingencies; see Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 34 (ABA 2002).

(Also see, for example, http://www.plainenglish.co.uk/ .)






Being a legal professional in both England and Germany and a practising legal translator for a long time I have got some of these doublets or even triplets in my translation all the time. And although I really adore Bryan Garner for his opinion and his very helpful books I must say that there are still some triplets which you cannot really avoid to translate in the same amount of words.
Such an example is:
give device and bequeath
in last wills and testaments (another doublet, which I always translate in the same amount of words). This is again in following Alcaraz and Asensio Mayoral. Allt hese words have a different meaning as they refer at least in English law to different categories of the estate, i.e. real or personal chattels or estate. And therefore it very dangerous and for all lawyers wrong to trnaslate it in a shortened version!
My point is that shortening should only be done in very narrow boundaries as there is always the danger of misinterpretation or omission. Especially in old legal texts!

[Edited at 2009-10-01 13:43 GMT]


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Derek Gill Franßen  Identity Verified
Germany
Local time: 12:13
German to English
+ ...
Some more thoughts on the subject... Oct 1, 2009

Jenny Forbes wrote:
An interesting thread.


I agree with you, Jenny—this is an interesting discussion!

Tim Drayton wrote:
I am sorry, but I do not fully buy into the argument that since lawyers are very clever people they know much better than we ordinary mortals what they are writing, and when they use a string of synonyms in place of one word there must be a very good reason for it which we are not entitled to question. If I see that the emperor is naked, then I will shout this out at the top of my voice.


I'm not sure it is about entitlement. I know a guy who is a professor of biology, and he has specialized in a certain type of beetle. And I am sure that he uses specific terminology to describe those beetles and their life when he converses with colleagues. I am certainly entitled to take part in their discussions, but to me they are all just beetles... alright, I might describe them by their color or size, but that is about the extent of it.

Tatty wrote:
It is not that lawyers are more intelligent than laypersons it is just that some words already have an established legal definition and others don't, and you wouldn't have a handle on this unless you had studied law.


I wholeheartedly agree, Tatty. I don't think the professor I mentioned above is necessarily more clever than I (even though that would undoubtedly be no hard task); he just knows more about that particular type of beetle. Much of the scientific jargon he uses is also based on convention.

Tatty wrote:
My approach is just to translate whatever the original says and I wouldn't start inserting extra words just because English lawyers do, as your job is to translate not to redraft
quote]
urbom wrote:
If you’re translating into English
ur translation will be used for information purposes [...].

Thus it would be inappropriate to try to make the contract "sound like" one written by an English or US lawyer – and as Tatty rightly points out, unless you’re a lawyer and have been trained in legal drafting, the results are likely to be pretty dodgy anyway.[/quote]

I also think that adding terms not present in the original to make the translation appear to have been drafted with the legal system of the target audience in mind is not the best approach. I don't think there really is a single approach to legal translation; as so often, the best approach often depends on multiple factors, e.g., the document's intended use, the intended audience, etc.

I recently received an inquiry for a job that I think illustrates the situation quite well: I was asked if I would translate a contract from English into German and "adapt it to German law." I answered that they would have to find someone else to do the translation since I only translate from German into English, but that—as an attorney admitted to the German bar—I could review the resulting translation and adapt it to German law.

But even if I would have taken on the translation, I would have had to charge seperately (and according to the German rules on fees) for the legal work of adaptation. The translation must convey the meaning of the original document, which presents its own challenges; the legal document must be valid according to a specific set of rules, which differs from place to place.

Translation and legal drafting are two different things, each with its own unique set of tools and each with its own, different results.




[Edited at 2009-10-01 14:20 GMT]


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