Hidden Meanings in Legal English
Perhaps no area of translation is trickier than legal translation, not only because of the vast differences between the common law system in the United States and the civil law system that dominates so much of the rest of the world, but also because of the unusual and sometimes downright incomprehensible language used in certain legal documents. At least these pitfalls are obvious: most people are aware that there is no such thing as a "grand jury" in most other countries, which makes the concept difficult to translate, and translators can tell from reading complicated legalese that they will have a hard time rendering it in another language. In this article, I focus on legal language in which the pitfalls are not so obvious. In fact, the meanings of the terms discussed here often have nothing to do with what a person might assume at first glance.
1. Judicial notice. It would be reasonable to assume that this term means "notice given by a judge." In fact, however, judicial notice is not something that a judge gives, but something that he takes. Under Federal Rule of Evidence 201, a judge can take judicial notice of something (or "judicially notice" something) that either (1) is generally known within the trial court's territorial jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. In other words, judges can take "judicial notice" of facts that are common knowledge or easily determined. Examples would include the fact that December 25 is Christmas Day, or that Washington D.C. is the capital of the United States. A judge can take judicial notice of these facts so that there is no need for the parties to furnish evidence of them. In foreign languages, this concept usually involves reference to "facts that are common knowledge": hechos notorios in Spanish, offenkundige Tatsachen in German, faits évidents in French. The Swedish term is domstolsnotoritet.
2. Executors and administrators. Sometimes a contract will state that it is binding on the parties’ executors and administrators. I have seen "administrator" in this context translated by a word that actually means the administrator or manager of a company, but this expression has nothing to do with companies. The key to understanding the word "administrator" in this context is its pairing with the term "executor." A person can die "testate" (with a will) or "intestate" (without a will). Upon a person’s death, his estate will be administered either by the person designated in the will (the "executor") or by the person appointed by a court to administer the estate because there is no will—and that person is called an "administrator." To translate this term properly, the translator will need to examine the laws of succession in the country of the target language, not its corporate laws.
3. Judgment proof. A dictionary I reviewed recently translated this word as though it meant "proof of a judgment," which might be a logical interpretation of the term, but is not at all what it means. Instead, "judgment proof" is an adjective referring to someone who does not have sufficient economic resources to pay a judgment entered against him. For example, if a clerical error were to cause a power plant to blow up, the injured victims might choose to sue the owner of the plant rather than the clerk who made the error. This is because large companies are deemed to have "deep pockets" (i.e., enough money to pay a large judgment), whereas the poor clerk would probably be deemed "judgment proof." A possible rendering of this term for translation into a foreign language is "without sufficient resources to pay a judgment."
4. Delaware corporation. It would be reasonable to assume that "Delaware corporation" means "a corporation of or from or in Delaware." In fact, however, a Delaware corporation is not necessarily any of these. Because each of the fifty states has its own corporate code, it is possible to incorporate a company in one state (to take advantage of that state’s law) even though the company is located in another state. For example, perhaps the most famous company in the world, The Coca-Cola Company, is a Delaware corporation but has its principal offices in Atlanta, Georgia. This unique feature of U.S. law must be reflected in translation. Therefore, "Delaware corporation" must be translated as "a corporation organized under the laws of Delaware."
5. Foreign corporation. In normal English, and even in most contexts in legal English, the word "foreign" means "from another country." It just so happens, however, that when this word collocates with "corporation," it has a different, unexpected meaning. To understand this concept, it is important to remember that each state has its own corporate code. The corporate codes typically define "foreign corporation" as a corporation "incorporated under a law other than the law of this state." Therefore, in Arizona, the term "foreign corporation" refers not only to corporations incorporated in the Republic of Mexico, but also corporations incorporated in the State of New Mexico. As a result, the term "foreign corporation" will need to be expanded to "corporation organized under the laws of another jurisdiction" before it is translated into a foreign language. It is important to note that "foreign" has this meaning only in conjunction with corporations; otherwise, legal English uses "foreign" in its normal sense of "from another country." For example, the Foreign Corrupt Practices Act prohibits corrupt practices by Americans in foreign countries. Similarly, a foreign government is the government of another country.
6. In camera hearing. The phrase "in camera" has nothing to do with video cameras (or any other kind of cameras, for that matter), but it does refer to whether or not spectators are allowed in court. "In camera" is a Latin phrase that means "in chambers," and originally referred to the judge’s chambers. Today, it is used as to mean a "closed hearing" (in which spectators—including cameras!—are not permitted), as opposed to a hearing in open court.
7. Loans. Two verbs that collocate with "loan" in English can be ambiguous. The first of these, "to secure a loan," can mean one of two things: either "to furnish collateral for the loan," or "to obtain a loan." A careful legal writer in English would probably use the phrase only in the first sense. After all, there is an entire body of law called "secured transactions" (meaning "furnishing security for borrowed money"). Unfortunately, however, not all writers are careful, so being careful is left to the translator. Another tricky collocation is the phrase "to extend a loan": it can mean either to "make a loan," or "to extend the term of a loan." Again, the first meaning is more likely, but it is important not to jump to conclusions, because a close reading will reveal which meaning is intended.
8. To continue. The meaning of the verb "to continue" in legal English is the very opposite of its meaning in ordinary English. In ordinary English, "to continue" means "to keep existing or happening without stopping," as in "it continued snowing all day." It can even have this ordinary meaning in legal English when it is used intransitively. For example, "The trial is expected to continue for three months" has the expected meaning that the trial will "last" or "go on" for three months. However, when used transitively, as in "The judge is continuing your case," the meaning is the opposite of what a layperson would expect. In legal English, the verb "to continue" means to "suspend" or "postpone" a proceeding, so if you are told that "the judge is continuing your case," this means that he or she is postponing it for a period, e.g., in order to allow a new attorney to familiarize himself with it. By the same token, a "continuance" is a suspension or a postponement of a proceeding, as in "The judge granted a continuance." Note that the ordinary English noun for "going on" or "proceeding" with something is "continuation," not "continuance."
9. Infant. In normal parlance, an infant is a small baby, but in legal English, "infant" is used to refer to anyone under the age of majority. Therefore, a lawyer might refer to a 16-year-old high school student as an "infant" (meaning a "minor") in a challenge to the student's capacity to contract. This archaic usage is criticized by plain-English advocates, but it is important for translators to recognize and understand it when they come across it. It can obviously be translated into foreign languages as "minor" (menor de edad in Spanish; minderjährig in German, minderårig in Swedish, etc.).
10. To stay. A court interpreter friend reports that her client was confused by this statement from the judge: "I'll sentence you to two weekends in juvenile detention, and I'll stay the second the weekend if you successfully complete the first." In everyday English, this sentence seems to suggest that the judge himself will remain in detention for the convicted minor during the second weekend if the minor remains in detention during the first one. However, in legal English, "to stay" is to "stop" or to "postpone" something, and thus the judge is saying that if the minor remains in detention the first weekend, he will not have to do so the second weekend.
11. Unqualified opinion. This is not a legal term, but a term from the world of auditing, where a distinction is made between "qualified opinions" and "unqualified opinions" of an auditor. To the uninitiated the term can suggest that the auditor is "unqualified," but what it really means is that the opinion does not contain any objections or exceptions to the financial statements. Note that in other languages the pair is not subject to misunderstanding: in Spanish, opinión con salvedades (qualified) and opinión sin salvedades (unqualified); in Danish konklusion med forbehold and konklusion uden forbehold; in French certification avec réserves and certification sans réserves; in German eingeschränkter Bestätigungsvermerk and uneingeschränkter Bestätigungsvermerk.