Coherence of European Private Law and Terminology Issues» —«Finding the words to say it

Autor:Silvia Ferreri

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I Introduction

The opportunity to speak about the subject announced depends on an experience which is still involving the speaker within the Acquis group project on European contract law, together with two more people.

Gerhard Dannemann, Michele Graziadei and I have been appointed by the «Acquis Group» (working on the consolidation of rules concer -ning the contract in Europe) with the task of revising the language used by the different working groups while they enquir in the various aspects of contract law.

As it has already been anticipated, the aim of the work which we are carrying on is fairly compatible and non contradictory with other experiences such as the UNIDROIT or the Lando Principles: as a matter of fact we do not mean to create ex novo, to build a new system of rules, but rather to consolidate, to express in a more coherent frame what is already part of the law generated by the European institutions by way of regulations and directives or case-law of the European Court of Justice: at the most, in some cases we attempt to generalize a rule which has been expressed in a specific case but could apply to other similar instances. As the previous collections of principles produced by UNIDROIT or the Lando commission also the final product of our work is not meant to be immediately enacted as a piece of legislation, rather it is conceived as an instrument that could provide to the European Commission a base to increase the coherence of European legislation, to help States in their implementation of directives or citizens in the interpretation of European legislation. We are somehow dealing with a document belonging to the field of «soft law»: along the same lines of previous experiences, nothing prevents private parties from referring to these documents in their contracts; with higher expectations of their being implemented by arbitrators rather than by national judges who are usually more strict-Page 89ly abiding to mandatory legislation than to collections of principles not yet transformed in formal legislation1.

My participation in the project explains why I am proposing myself as a speaker: obviously on my own behalf and not involving the other members of the team in what I am saying.

But it does not explain why three non native speakers of English have been appointed with this task.

As You might have figured by the names mentioned, one of the members of the terminology group is German by nationality and the other two are Italians: none of us is English (or Scottish or Irish, or Welsh). The general drafting group does include some scholars working in England, and obvioulsy they have a say in the writing process: but the task of terminological revision was entrusted to three people brought up in a different culture.

A relevant consideration might have been the fact that, in this rather strange adventure of expressing European law in the language least appropriate to express civil law concepts, we should try to avoid «anglicisms», to restrict expressions too tightly connected with the common law background: foreigners having a fair knowledge of English were less likely to choose strictly technical expressions of the English legal lingo; they were more likely to stick to that sort of «lingua franca» which international English has become.

As a matter of fact the expression in English of the discussions and of the final «principles» depends more on a need than on a real choice: most of the participants communicate in English, even if most of them also know fluently a second language ... but not always the same. Some older members of the Group can speak French or German, some other have a good level of competence in Spanish or in some of the Scandinavian languages, but the means of communication common to all of us is English: and it really would have seemed rather unrealistic to ask our colleagues from the Eastern countries (we have several Polish members) to add a further language to their Russian (which they learnt in school not out of a choice but by a forced imposition) and English. Of course some stakeholders in the periodic presentation of our work have objected that we should speak French, or at least use French as a second language in our discussions: unfortunately the discussions are already ratherPage 90lengthy and complicated with one foreign language, they would last for ever if we had to express ourselves repeatedly in two languages (of course we do not dispose of translators as we prefer to speak to each other directly, without having an intermediate passage through a person who might add qualifications to what we say).

As far as the idea of choosing French as the primary language is concerned, of course one can reflect on the suggestion offered recently in Bruxelles by Maurice Druon (a French member of the Académie de France and a famous writer): the French language is highly qualified and already experimented because the Code Napoléon was written in French. But one should consider that nowadays even the European Court of Justice (where the writing language of the decisions is French) holds discussions in English, behind closed doors: simply because it’s the most expedient means of communcation and many preparatory works of the different institutions are readily available in English.

Therefore it may seem a paradox that what was true in the past is completely subverted: in the the XVII century — when Law French was still dominant in the royal courts of England - Roger North affirmed that «Really, the Law is scarcely expressible properly in English»2. Now the opposite seems to be true: the only way to communicate internationally is by way of the English language3.

We are part of the more general phenomenon sometimes called «globish» (global English): the appropriation of the English language by non native speakers, with various consequences, including the creation of an independent literature expressed in English but originated in other cultures, especially of Asia4.

Of course one of the main obstacles is eluded by the fact that our work is being published in writing rather than orally presented: the English pronun -Page 91ciation is a great disincentive for foreigners, but also a great social marker for people born in England as it has been pointed out by saying that in English «as soon as you open your mouth someone either hates or despises you» depen -ding on the social class you and your listener belong to5.

Drafting the acquis principles in the English language from a European rather than from an English perspective has one advantage. It somewhat reduces the risk of an excess of «anglicisms», of English law passing into the rules, for the sole reason that English legal terminology is closely connected with English law.

We had to guard ourselves from some treacherous expressions which look perfectly acceptable to an English lawyer. We did, for example, our best not to use the term ‘consideration’, in order to avoid the connotations with which English law uses this term. We also avoided one expression which British le -gislative drafters (and also their European counterparts, as is shown e.g. by the Interinstitutional Agreement6) often use, namely ‘shall’. The implications of this verb are too loose to give a clear idea of the message conveyed: it can indicate a duty to do something, a discretion, or a factual connection of cause and consequence7. We also tried to avoid expressions such as «to deem» that hold an implication of a fictitious element, a presumption that would pass into the field of procedural law which is beyond our competence: we preferred the verb «to consider» instead.

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Obviously rules concerning punctuation have been adapted to the European context: we did not conform to the English tradition in drafting legislation of limiting or excluding commas, columns, or other signs admitting only the full stop (even though rules concerning various signs differ from language to language, and we also tried not to abuse in their use).

To put this choice of non-native English speakers further in a context, we have to take a step back and consider the aim of the project started by the European Commission.

The primary object declared by the EC at the beginning of our work was to improve the coherence of the normative production by European institutions: I am referring to the «Action Plan on European Contract Law» of January 20038.

Various institutions within the European Community have pointed out to the fact that a number of contradictory notions are sometimes included in the same instrument: for instance this happens with the 1986 directive on independent commercial agents where both the notion of «indemnity» and «compensation» are used9 and, in a different field, the word «damage» takes alternative meanings in the products’ liability directive and in the 1986 directive on independent agents10.

In order to work in this direction the choice of the Acquis Group has been to entrust the delicate task of checking all the draft principles and rules to people who next to a certain fluency in English, could provide some insight in the different legal systems involved. All members of the small group are comparative lawyers, who have regularly published in English over the years: somehow better equipped to guess where innocent words may hide a conceptual difference, an ambiguity for readers of different cultures.

I am not going into a complete and detailed explanation of how the works have been carried out: often the description of methods of work gets rather descriptive and people are even less attracted by them than by good cooking- receipes.

I shall focus more on the constraints that both the drafters of the rules and we had, adding that in the revision process the terminology group also met...

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