This material first appeared as a post on the author’s blog Tip of the Tongue, here. Published with permission from the author.
By Stephen Rifkind
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.
Stephen Rifkind – Gaguzia Translations – since 2005. He translates from Hebrew, French and Russian to English, both US and UK, specializing in legal and financial documents, in particular contracts and official documents. He is a member of the ATA and SFT (France), a Recognized Translator by the Israeli Translators Association and a Proz.com certified Pro. His eclectic education background includes a BA in Russian, Teaching Credentials in French, an MBA and legal studies. He has also been a Lecturer of English at Braude College of Engineering in Karmiel Israel for over 20 years. He has had a blog for 10 years.