Term lesson 16

Transforming

English for special purposes

into English for general purposes

Preliminaries

An introduction to the plain language movement

• USA 1970s

Plain language v. legalese• Aims

– simplify legal documents– protect the consumer

• insurance contracts

• Modify the communicative function of legal documents

Some principles: US styleguide

• Use ordinary words rather than legal terms• Get rid of obsolete, Latin expressions• Use the active rather than passive voice• Use positive formulations rather than negative• Use short sentences• Use linking words• Keep the complement close to its verb• Limit the use of shall…

An example of US rewriting• Initial version

Sec. 182. Notice to an insurer of a transfer or bequest thereof is not necessary to preserve the validity of a policy of insurance upon life or health, unless thereby expressly required.

• Plain English version

Sec. 182. Even though the insurer is unaware that the insured has passed his life insurance policy on to another person, or has gifted it to another person by naming him in his will (just as mentioned above), the life or health insurance contract remains valid – except if it clearly states that it is necessary to inform the insurer.

Plain language

in other English-speaking countries

Australia– Legislation thus drafted since 1980s– Australian Parliamentary Counsel

• Plain English Manual, www.opc.gov.au

shall is abolished!

Plain English in the UK

– Renton Commission 1973 : legislative texts– 1990s : Tax Law Rewrite project– 1998 : UK Civil Procedures in plain language– 2006 : Scottish Parliament

• Plain language and legislation

Preparing for the exercise

• Aim : to explain to a non specialist– Try to explain as much as possible

• even the detail

– No holds barred !• If you need twice as many words, use them!

• ‘ Not being an English-speaker… ’– English speakers would have the same

difficulty – terms need special learning.• The aim is clarity, not idiomaticity.

‘Pas compris, pas traduit !’

• To translate or to transfer, you must first understand the message

• Analyse the document– Who is it addressed to?

• Who are the parties to the agreement?

– What is its function?• What are the rights, obligations of the parties?

– What legal context is the document set in?

Textual considerations

• Introduction

– Plain language drafters also draw on the research and insights of experts in document design.

• They pay as much attention to fonts and white space as they do to choice of words.

• They try to devise methods of presenting material visually that will assist the reader to use the statute book effectively, and with minimum effort.

http://www.opc.gov.au/plain/index.htm

Textual considerations 2

How to make the text readable ?Colvin Duplex Rentals, LlcLEASE AGREEMENT PH# 255-0245VICKI COLVINLOYD COLVINAGREEMENT OF LEASE MADE THIS _________ DAY OF _________________, 20____, BY COLVIN DUPLEX RENTALS,

LLC, HEREINAFTER CALLED LESSOR, AND _______________________________________________________________ HEREINAFTER CALLED LESSEE.

LESSOR DOES HEREBY RENT AND LEASE UNTO LESSEE THAT CERTAIN APARTMENT _________ LOCATED AT DEBRA LANE   RUSTON, LA. FOR A PERIOD OF _________MONTHS COMMENCING                        20___ AND ENDING ON ___________________ 20____.   SAID PROPERTY IS HEREIN AFTER REFERRED TO AS THE PREMISES.

AS RENTAL, LESSEE AGREES TO PAY LESSOR THE SUM OF __________DOLLARS PER MONTH, PAYABLE TO LESSOR AT P.O. BOX 271 RUSTON, LA. 71273-0271, IN ADVANCE OF THE FIRST OF EACH CALENDAR MONTH THROUGHOUT THE TERM OF THIS LEASE, BEGINNING WITH THE COMMENCEMENT DATE OF THIS LEASE; PROVIDED, THAT IF THE COMMENCEMENT DATE OF THIS LEASE SHALL BE OTHER THAN THE FIRST DAY OF A CALENDAR MONTH, THEN THE RENTALS FOR THE REST OF THAT MONTH SHALL BE PRORATED FOR THE NUMBERS OF DAYS IN THAT MONTH. THE RENTALS FOR THE NEXT AND ALL SUCCEEDING MONTHS SHALL BE DUE AND PAYABLE ON THE FIRST DAY OF EACH CALENDAR MONTH IN ADVANCE.  IN THE EVENT THAT MONTHLY RENT IS NOT PAID BY THE FIFTH DAY OF THE MONTH, THEN A 10% LATE CHARGE SHALL APPLY.   IF THE RENT IS STILL NOT PAID BY THE TENTH DAY OF THE MONTH, THEN LESSOR SHALL HAVE THE RIGHT TO DECLARE LESSEE’S DAMAGE DEPOSIT FORFEITED AND,  AT THE LESSORS OPTION, CAUSE ALL REMAINING INSTALLMENTS OF RENT TO BECOME IMMEDIATELY DUE AND PAYABLE IN A SINGLE INSTALLMENT OR, ALTERNATIVELY,  CAUSE THIS LEASE TO BE FULLY CANCELED AND TERMINATED, WITHOUT NECESSITY OF PLACING LESSEES IN DEFAULT ON ACCOUNT OF DELINQUENCY IN PAYMENT OF THE RENT, OR DOUBLE THE LATE FEE.   SHOULD LESSOR CHOOSE TO CANCEL AND TERMINATE THE LEASE AS PROVIDED HERE AND ABOVE, LESSEES SHALL NEVERTHELESS BE OBLIGATED TO LESSOR FOR ANY DAMAGES SUSTAINED.   IN THE EVENT LESSEES DEFAULT ON ANY TERMS OF THIS LEASE AND ARE EVICTED, LESSESS WILL BE LIABLE FOR ANY DAMAGES SUSTAINED BY LESSOR INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGES, REPAIRS, AND THE LOSS OF ANY RENT DURING ANY REMAINING TERM OF THE LEASE.

Improve the layout

• i.e. transposition does not concern language alone, but the ergonomy of the document

– This lease is made on [date]• between• Colvin Duplex Rentals, called the landlord in this contract• and• ……., called the tenant.

The landlord agrees to rent the apartment[address]- for [ ] months

- starting on- until….

Embedded clauses

• All payments to be made by the Guarantor to the Bank shall be made free and clear [of and without deduction [for or on account of all Taxes imposed or levied [by or on behalf of Israel or any other jurisdiction [from or through which such payments are made [or any authority therein or thereof having power to tax

in connection with the performance by the Guarantor of its obligations under this Letter of Guarantee]]]]]

unless the Guarantor is compelled by law to make payment subject to such Applicable tax

transcription

• The Guarantor [explanation in a footnote] must make payments to the Bank so that the Bank receives the payments in full, that is free from any deductions imposed by tax authorities (Israel, the US, or any other jurisdiction involved in the process or on which Guarantor relies on).

• In other words, the payment made by the Guarantor must be free of any of the taxes referred to in this clause as ‘applicable taxes’.

• This does not apply, however, if the Guarantor is required by law to make payment subject to such applicable taxes.

Terminology : the key

• Terms define special knowledge. – Without the knowledge of terms,

it is not possible to understand a specialised text

• Terms form a conceptual system. – They must be defined one in relation to

another, to give access to this system.

Terminology in general dictionaries

• General language dictionaries contain much specialised lexicon (terms)– Many need explaining to the average person– Some general language dictionaries define

using legal terminology

• lessor : one that conveys property by lease • lessee : one that holds real or personal property

under a lease (Merriam-Webster)

Explaining terms

• Adapting definitions

lessor : the person who owns a house, flat and rents it out to someone

else

lessee : the person who rents a house, flat…

• Using synonymslessor : the landlord, the owner

lessee : the tenant

Legal terms and turns of phrase

• Without prejudice (= without loss of any rights) […] describes a legal action […] that in no way harms or cancels the legal rights or privileges of a party.

Bryan A. Garner, A Dictionary of Modern Legal Usage

– without prejudice to the rights of the seller• sous réserve des droits du vendeur

– http://www.juripole.fr/traduction-juridique/Bulletins/2007-1.php

– Dismissal without prejudice• Not preventing refiling a suit…

ESP & EGP

• False friends– damage : dégâts– damages: Monetary compensation or

indemnity for wrong or injury caused by the violation of a legal right.

• http://nycourts.gov/lawlibraries/glossary.shtml

Semi-specialised vocabulary

• ESP and EGP are polar concepts• It is a question of more or less specialised• When in doubt, explain

(better to be sure than sorry)

LESSEES MAY NOT ALTER THE UTILITIES AND/OR UTILITY SERVICES FURNISHED TO THE LEASED PREMISES IN ANY MANNER WHATSOEVER

• utilities : define in extension

water, gas, electricity…

Regionally marked terms

duplex (US) = semi (detached) house (UK)

Finding the distinctive feature

• Delinquancy vs default

common feature : failure to pay- delinquency : because of lateness- default : because of insolvability

Microfinance Glossary

http://www.lamicrofinance.org/content/article/detail/19829

Immediate constituent analysis

• Deduce the meaning of terms not found in glossaries

• non factory installed accessories

– Cf factory installed accessories• factory installed options• factory installed interfaces and files

Term banks

• revolving facility agreement =– Revolving credit

• A credit arrangement whereby a customer can withdraw funds or charge goods up to a specified limit, with the credit available automatically returning to the maximum as payments are made. – TERMIUM

Official sources for contested terms

• Consequential loss is the cost to the consumer  of a problem with goods or services. – It is usually financial but can include other costs, such as lost

time or productivity.– A consumer can claim compensation from a supplier or

manufacturer for consequential loss when goods or services fail to meet one or more of the consumer guarantees.

– A consumer can apply to you directly for compensation for consequential loss. If you decline or an agreement cannot be negotiated, the consumer can take the matter to formal dispute resolution services or take legal action.

• http://www.commerce.wa.gov.au/consumerprotection/content/business/selling_goods_services/Consumer_Guarantees/Compensation_for_consequential.html

Unpacking nominalisations

• LEASE• Lessees shall make no alterations to the leased

premises, or its contents without the prior written consent of the company….

rewrite:

• If the tenants want to make any changes to the apartment or its content, they must ask the company to allow them to do so and to put their approval in writing beforehand…..

Examples of rewriting

• 6.3 The cancellation of the guarantee by any of us shall not affect the validity of the obligations of the others.

• Strategy :– Use an if – clause– Replace nominalisation by corresponding– Spell out the implications

• If one of the three parties to the agreement pulls out, the others still have to honour their commitments.

rewriting

• Original:

d) Guarantor shall not indemnify Bank for US withholding taxes that are imposed due to Bank’s failure to provide Guarantor with the proper form required under paragraph c) above.

• Rewritten:

d) If the bank does not give the ‘Guarantor’ the right papers to avoid paying American tax, the Guarantor will not have to pay the tax that the bank could pay. The papers are defined in paragraph c).

Specialized verbs

• Such examination may be waived– This examination may be dispensed with

• waive : give up [a right, a privilege…]

• the interests of a beneficiary shall be forfeited– the beneficiary will have to renounce his or

her interests– NB Insurable interest exists when an insured person

derives a financial or other kind of benefit from the continuous existence of the insured object.

Documentation • General language dictionaries

– only limited use • though common legal or insurance terms are defined

• Specialised dictionaries• Webster’s New World Law Dictionary

• Term banks : IATE et Termium• made by terminologists• validated by experts

• Online glossaries • variable quality

– marketing aims– But also industry sities– Insurance Bureau of Canada

» http://www.ibc.ca/en/need_more_info/glossary/a.asp

• Specialised studies• HODGES, S (1996), Law of marine insurance, Cavendish

More on online glossaries

• Specialized• Online lease glossary• http://www.georgevaill.com/real_estate_terms.htm

– AssigneeIndividual to whom a contract is assigned.

– AssignmentThe manner by which a contract is transferred from one individual to another individual.

– AssignorAn individual who transfers a contract to another individual.

Termium• assign

to transfer personal estate, or chattels real, or certain rights in real or personal estate.

OBS – The term is especially applied to leases, terms of years, and life interests in land or personal property, and to choses in action, and incorporeal chattels. The word "assign" is the proper technical operative word ... (Jowitt's, 2nd ed., 1977, p. 46)

• céder   OBS – céder : terme normalisé par le Comité de normalisation du

Programme national de l'administration de la justice dans les deux langues officielles (PAJLO)

transcribe

• NO PETS SHALL BE ALLOWED, EVEN TEMPORARILY, ANYWHERE ON THE LEASED PREMISES, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSORS.  LESSEES WILL BE SUBJECT TO CHARGES, DAMAGES, AND EVICTION PROVISIONS OF THIS LEASE IF THIS PROVISION IS VIOLATED.  IF A PET HAS BEEN KEPT ON THE LEASED PREMISES AT ANYTIME DURING THE LEASE, THE DEPOSIT WILL BE FORFEITED.

Further thought

• Is transposing the same as translating?