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The Jersey Law Review – June 2005
MISCELLANY
A WORD ABOUT FOREIGN WORDS
1 In any country where legislative drafting involves two official languages there is a risk of occasional linguistic confusion. Some words are difficult, if not impossible, to translate without embarking on an explanation of the term involved. Cause in its contractual sense is one such example. The Law Draftsman sidestepped the problem of translating cause in the context of the Companies (Jersey) Law 1991 by the simple device of putting the word in inverted commas and providing that it had “the meaning assigned to it by the customary law of the Island”.
2 Désastre is another familiar example. The word désastre was of course originally employed to signify that the affairs of a debtor were in a disastrous state and that the Court should consequently assert a jurisdiction to ensure an equitable distribution of the debtor’s assets among his creditors. But no-one would today translate the legal term désastre as “disaster”. The procedure has evolved into a sophisticated bankruptcy system. The Bankruptcy Law itself does not attempt a translation. The state of the debtor’s bankruptcy is referred to as the désastre on the assumption that everyone will know what it means.
3 Interestingly the same law, the Bankruptcy (Désastre) (Jersey) Law 1990, employs a different technique with words and phrases which the draftsman reckons to be capable of translation and easily understood. Thus créancier hypothécaire becomes “hypothecary creditor” and hypothéque judiciaire ou conventionnel becomes “judicial or conventional hypothec”. It is submitted that this must be the right approach.
4 Sometimes, however, the draftsman senses that the translation might not convey exactly the technical meaning of the words in French, particularly if the English words bear their own technical meaning in English law. The technique is then to use the English translation but to put the words or phrase in the original French in brackets afterwards. For example, “Where … the debtor is beneficially entitled to any immovable property as a joint tenant (“ conjointement par ensemble”) the title to the property shall, … be deemed to be converted into a tenancy in common in equal shares (“en indivis en parts égales”) … “. The danger here of course is that, with the passage of time and the creeping anglicization of Jersey law, the words may eventually be thought to bear the same meaning as if they were contained in an English statute. It would surely be preferable to find some words which accurately translate the French phrase but which do not have any technical meaning in English law. Thus, in the above example, one could use words such as “converted into undivided ownership in equal parts”.
5 This approach must, it is submitted, be better than the latest example of franglais which has crept into the Drainage (Jersey) Law 2005. Article 47(1) provides -
A “Tenantaprès dégrèvement” shall pay all costs that, by virtue of this Law, are owed by a “cessionaire” at the time when the “héritages” of the latter were placed “en dégrèvement”.
Why not employ the standard technique? “A tenant after discumberment (“tenant après dégrèvement”) shall pay all costs that, by virtue of this Law, are owed by a person who has made cession (“cessionaire”) at the time when the hereditaments of the latter were placed in discumberment (en dégrèvement”).
6 It must be added, in fairness to the draftsman, that the Royal Court itself appears to have caught this disease. In Rule 20/9 of the Royal Court Rules 2004, entitled ironically “Use of English”, paragraph (2) provides –
“The Bailiff may issue practice directions enabling the use of English in contrats and other deeds passé devant justice to such extent and for such purposes as the directions may specify”.
7 Alas, Homer has dodeliné de la tête.
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