Thursday, June 01, 2006


Gratuitous title

There is a widely-held view that translations of legal texts should ‘stick close to the original’, in other words transpose the source-text as nearly word-for-word as the rules of grammar will permit. For adepts of this school of thought, the Civil Code of Lower Canada, latterly revised as the Civil Code of Quebec, must represent something of a holy book. The cryptic nature of many of its provisions make the English version a code in more ways than one. The key to deciphering which is French.

Many of the terms used in the English are obscure anglicizations of French expressions that have perfectly good equivalents in proper English, ‘rent’ for ‘rente’ (annuity), for example. Provisions that are clear and straightforward in the French version become decidedly enigmatic in English: ‘Le mariage se prouve par l'acte de mariage’ (Article 378), for example, is rendered as ‘Marriage is proved by an act of marriage’ (examples taken from Weston’s book on the French legal system).

Then there is the ponderous expression ‘by onerous title’:
(Article 402)
A spouse having neither consented to nor ratified an act concerning any movable property serving for the use of the household may apply to have it annulled.

However, an act by onerous title may not be annulled if the other contracting party was in good faith
As I understand it, this basically means that if the property is sold as opposed to given away then the buyer gets to keep it if unaware of the restriction. OK, so they didn’t want to use the term ‘consideration’ as being too evocative of the Common Law. But ‘an act by onerous title’ is surely unnecessarily opaque. What possible call is there for slavishly translating ‘titre’ by ‘title’? When used in this way, ‘titre’ doesn’t really mean anything – ‘a titre d’exemple’ just means ‘for example’, ‘a titre gratuit’ means ‘free’, as in ‘free of charge’. Its use is a matter of form not content and its semantic payload is minimal. The English word ‘title’ simply doesn’t work that way. It will always be understood as conveying something of substance. Therefore to include it in the translation amounts to adding in something not present in the original.

So much for ‘sticking closely’.

The expression ‘by onerous title’ and its ugly sister ‘by gratuitous title’ are not confined to Canada. They seem to be well-established in various parts of the world with a civil-law tradition but with English as the language of the law. There are several hits for Louisiana and the Philippines, for example.

There is consequently a danger of this sort of calqued terminology seeping into the English of international law. So it was, presumably, that a preliminary draft of the Principles of International Commercial Contracts drawn up by a high-calibre working group at Unidroit (the International Institute for the Unification of Private Law) came to include the expression ‘by gratuitous title’:
An offer by gratuitous title to renounce a claim addressed by the obligee to the obligor shall be deemed accepted if the obligor does not reject the offer without delay, after he has become aware of it.
Happily, this was nipped in the bud by one native-speaker participant, who picked up on the semantic miscue caused by the (gratuitous) insertion of the word ‘title’ (link) …
Finn (…) observed that the terminology “An offer by gratuitous title” might lead some common lawyers to wonder what it meant, whether it was a notion of land law.
… and the offending phrase does not appear in the final version:
An offer to release a right gratuitously shall be deemed accepted if the obligor does not reject the offer without delay after having become aware of it.
Sadly such vigilance for meaningful English is all too rare among the native English-speaking members of international drafting committees, notably in Brussels (previous post).

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