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Jersey & Guernsey Law Review – February 2007

SHORTER ARTICLES AND NOTES

BY THE STROKE OF A PEN ….

Richard Falle

1       Victor Hugo must be turning in his grave!  Exiled in Jersey and Guernsey in the mid-nineteenth century Hugo, philosopher statesman and man of letters, lovingly described a strong Francophone culture where in these British Islands, French, as it had been for a thousand years, continued to be the language of the Royal Court, the States, church and chapel and much of the population. He could not have foreseen how his beloved tongue would, over the next century and a half be largely washed away by a tide of monoglot immigration from elsewhere in the British Isles.

2       Until recently there was in high places a certain determination to keep faith with the French language and avoid the discontinuity and cultural impoverishment which its loss would entail. Thus Sir Robert Le Masurier, Bailiff of Jersey, in 1966 in his Avant Propos to the Dictionnaire Jersiais of Le Maistre “…. quels que soient les reproches que nos descendants puissent faire à notre génération, ils ne nous accuseront pas d’indifferance de nos ancêtres.”

3       French remains the language of the texts and commentaries on the law and custom of the Islands.  Until October 2006 it was also the language of conveyancing in Jersey.  All the terms of art and the underlying custom are expressed in French and until last October Jersey was almost certainly unique in the British Isles as a place where French was the language used in the production of legal documents. 

4       It had long been the custom of conveyancers to provide an English translation of their contracts to those who asked for it.  The translation always carried the health warning that it was only approximate because English terms were not precisely equivalent and might indeed import English law notions where none existed.  It was generally thought that this practice met the needs of anyone unable to read his French contract.

5       Conveyancing is the science and art of creating, transferring and extinguishing rights of property in or over land. It has been done in Jersey by written contract (“contrat”) for at least 800 years and remains a major branch of legal work and lawyers’ business. It is based on the knowledge of what rights can exist in or over land, of what by contract can be secured within the law and custom and what machinery can appropriately be employed to achieve particular ends. This science and art is accordingly to be taken seriously. The conveyancer must be familiar not only with form but also with the terms of art and their significance as these are to be found embedded in law, custom and usage.  The language used is therefore technical and not necessarily of interest to the average citizen.

6       Given these considerations, one might have thought that an efficient, well tried system of great antiquity would be safe from tampering.  Those who sought change for change’s sake would be seen off.  We now know that any such complacency was not well founded. 

7       Rule 20/9 of the Royal Court Rules 2004 provided for directions where the use of English might be permitted in certain circumstances.  That power was however, radically and unexpectedly altered by the Royal Court (Amendment No. 2) Rules 2006 which provides -

“All contracts passed before the Royal Court shall henceforth be in English but in the form that was customary when they were drafted in French.”

8       A direction followed, supported by specimen English forms and a glossary of terms with approved English equivalents.  Some terms, held not easily translatable, could continue to be used.  The profession was allowed some months to adjust when both French and English could be used before the rule became effective and the use of French forbidden from the 1st October 2006.

9       Some in the legal profession welcomed the change.  Impatient with a tradition and history with which perhaps they do not identify, the use of French was to them anomalous and the move to English evidence of progress.  Certainly the teaching of French in the schools has declined and French is seldom heard on the streets and in the country.  More people will therefore be able to read their contracts without seeing them through the lens of a translation.  They will still of course need guidance on any differences between neighbours.  Other lawyers and their conveyancers in contrast considered the change arbitrary and unjustified.  They saw a danger that young lawyers and clerks would soon not be able to research earlier titles in, what would be to them, an alien and increasingly impenetrable tongue.  The Public Registry with its vast record stretching back to 1602 would be the exclusive resort of specialist researchers.  The resultant loss of professional competence would not be in the public interest.

10     Rules, of course, determine the procedure of the Courts.  They are routinely and without sentiment altered in response to the exigencies of justice.  In Jersey, at least since the mid-60’s, change has also however, been driven by a general concern to mirror the procedures set out in the White Book.  While one can understand this philosophy, some now tremble for the future of what little remains from the past in a fast changing world.

11     It is, in the circumstances, left to this journal to record that on that day (10th October 2006) when French was unceremoniously banned from recording transactions in land and a richly symbolic (some would say lamentable) moment in our history, no public announcement of the change was made in Court or even later, at the traditional farewell review of the legal year, before the Court rose for the Christmas holiday.

Richard Falle is an advocate of the Royal Court and a consultant to the firm of Bois Bois, 2, Bond Street, St. Helier, Jersey, JE2 3NP.

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