31 Jan If You Hear a Bell, Heed the Warning
Have you ever read something and hear a bell go off in your head? “This word is out of place” or “Where is the comma?” It happened to me during a review of a legal text. Legal terminology demands research. Beyond the vocabulary issue, we have to mind the fact that different legal systems don’t usually have direct correspondents.
When things seem just too easy, that is when we should look harder
The first bell went off when I read the title of the document and compared it to the translation. The Brazilian Portuguese original was a cautelar de arresto and the English translation read arrest warrant. The use of that false cognate – arresto/arrest –completely changed the nature of the document. An arrest warrant is a mandado de prisão in Brazilian Portuguese. The first thing that flagged the translation to me was the fact that a cautelar is not a warrant. Short for medida cautelar, it means provisional remedy. The next noun, arresto, means attachment.
Staying true to the original is the goal
Tainted by the use of a false cognate, the rest of the translation had to somehow fit an arrest in it and the translator managed to do so. In a paragraph further into the document, the original mentioned Houve nulidade da citação por edital de Giovanni, com o que o arresto é nulo pelo cerceamento do direito de nomeação de bens à penhora. It was translated as “The summons by edict was null, and thus his arrest is null due to the curtailment of his right to allocate assets as pledge.” Poor Giovanni. Sent to prison due to a false cognate. If you have read this far, you may have guessed that what was null was the attachment of Giovanni’s property.
Research, research, and research again
When I work with legal documents, I usually have three dictionaries with me. Black’s Law Dictionary (8th edition), Maria Chaves de Mello’s Law Dictionary (9th edition), and Marcílio Moreira de Castro’s Dictionary of Law, Economics and Accounting (4th edition). My course in Comparative Law at Descomplicando o Inglês Jurídico complements my tools. I have gained a deeper understanding of and appreciation for the nuances and mechanisms of the legal systems in the U.S. and in Brazil. The most important thing I have learned in the two years of this course is “Do not take anything for granted.”
Brazilian-born Giovanna “Gio” Lester, Co-Chair of NAJIT’s PR Committee, started her career in translation and interpreting in 1980. Gio is very active in her profession and in the associations she is affiliated with. In 2009, she co-founded the Florida ATA Chapter (ATIF), served as its first elected president (2011-2012), and later as president of its interim board.
As an international conference interpreter, Gio has been the voice of government heads and officials, scientists, researchers, doctors, hairdressers, teachers, engineers, investors and more. Gio has been a contributor to The NAJIT Observer since its inception in 2011, and its Editor since 2016. In 2017 she was appointed Chair of the Miami Dade College Translation and Interpretation Advisory Committee, which she had been a member of since 2014. In 2018, Gio was elected to the Executive Committee of the Brazilian Association of Translators and Interpreters, Abrates, as its General Secretary.
You can follow her on Twitter (@cariobana), learn more about Gio on her website, and she can also be reached at gio@giolester.com. Click here to read other posts by Gio.
You are so right!
Sometimes, some principles of law are quite confusing for somebody who is not familiar with legal terminology. A few years ago, I interpreted for an international law enforcement conference and the host provided the interpreters with written materials. There, I noticed that “double jeopardy” (when a defendant cannot be prosecuted or tried twice for the same act) has been translated by “double criminality”. Well, double criminality, or dual criminality, is a requirement in the extradition law. It states that a suspect can be extradited from one country to stand trial for breaking a second country’s laws only if a similar law exists in the extraditing country. The correct term should’ve been “non bis in idem”.
Temporary order. Provisional remedy is unnecessarily cryptic. We have something in our juridical system universally used to define a medida cautelar. We use temporary order
Pledge as collateral or pledge as security.. Not allocate assets as pledge.
I would mitigate instead of curtail, but that’s kind of in the splitting hairs area.
Sorry, but local speakers like it, and understand it better, when our bells ring purdy in their native ears. Please, don’t shoot the messenger.
Que barato! Você fala português. Já pensou em escrever um dicionário corrigindo os erros dos dicionários jurídicos brasileiros?
At any rate, I really did not have time to wait until you published your Brazilian Portuguese Legal Dictionary, Alfredo.
provisional remedy
n. a generic term for any temporary order of a court to protect a party from irreparable damage while a lawsuit or petition is pending.
I agree with “temporary order” rather then “provisional remedy” if the translation is to be used in the USA.
It’s a more commonly used term, so less likely to make the reader do a double-take.
They are both right, but the target audience should always be kept in mind.
This is irrelevant to the piece. I was commenting on the use of a false cognate and how it impacted the whole translation, not only the sentence where it was first used. And that was the work submitted by the translators whose work I was reviewing, not my rendition.
So, again, irrelevant.
Gio, come on. Don’t be like that. I’m not trying to be combative. It’s just that we have certainty in the language we use in our judicial system, and our translations should not be mechanical transliterations. Even if you don’t quite grasp it at that level, the text is obviously more intelligible for the English speakers (our clients and end users, usually a lawyer or a judge) as “Vacating” or “Setting Aside” a “Temporary Order.” It usually happens when some property has been seized under a “medida cautelar / temporary order” and the person it was seized from has assets to “pledge as collateral” while the case is ongoing and until a final judgment is entered. We don’t “null an attachment of property.” We set aside / vacate a temporary order to seize assets. The respondent pledges assets as collateral/security while the case is ongoing. Like, “Your honor, the court doesn’t need to seize my client’s warehouse contents. We are prepared to pledge $500,000 in cash as collateral and we move to set aside the temporary order.” If the blog is going to be all about keeping our mouths shut, what’s the point? Anyway, all right, null the attachment of assets by provisional remedy until the curtailment of the whatever. I think I’m done commenting anyway, Gio.
See my response above.
*rather than (my apologies)
All right, Gio. I apologize for being irrelevant. But I really do want to learn at every turn and the text just didn’t mean anything to me, so I kind of interjected there.
Tell you what. Since a “summons by edict” is also a bunch of gobbledegook, and above you say that you have gained the deepest of understandings in the nuances of the legal systems in the US and Brazil, could you please enlighten me as to what it really means in English, in this context? The nuance of it sounding so alien makes me wonder if that is also the result of a false cognate. Won’t you please? Can you tell me what “citação por edital” really means? I’m curious, because a “summons by edict” just isn’t working for me. It’s ringing a bell. Heck, the entire text in English is a bunch of nonsense, but that one is particularly suspect. Let’s turn a misunderstanding into a learning experience. Kind of like linguistic Tai Chi.
Because, playing devil’s advocate here, what if it wasn’t a false cognate at all? What if it was, in fact, a “CAPIAS,” and the constitutional right that Giovanni had “curtailed,” happened when the Court issued an arrest warrant for Giovanni in a criminal case? If this text originated from an Appeal [Recurso de Amparo (in Spanish) – I’m sure in Portuguese, being Roman Law as well, there’s an equivalent for the protection from a violation of individual constitutional rights], now, the whole nonsense text would start to make a lot of sense. It isn’t much of a stretch either. If you were to explain that situation in English, it would look something like this: Giovanni was accused of committing a crime. Giovanni’s lawyer filed an Appeal. He went to court in what’s called A Hearing to Show Cause, and asked the court to Vacate the Arrest Warrant (Capias) after establishing Giovanni isn’t a flight risk, and proving that he has the money to post bail. The Capias is set aside and a determination is made stating that said arrest warrant hindered Giovanni from pledging assets as security (post bail) to guarantee that he won’t flee before the next court appearance, instead of sitting in jail, thus “curtailing his constitutional right.”
And that, in itself, would turn what was originally thought to be a false cognate into a good translation (at least of that part) because the “Medida Mautelar” (Temporary Order) in question was a “Capias” in a criminal case, resolved by a “Recurso de Amparo” (Appeal) that precipitated a Hearing to Show Cause. So, a false cognate gets trumped by cognitive dissonance, the moral of the story becomes to not jump the shark too quickly, and this whole entry needs to be burned in shame. LOL… Come on! Smile a little, uh? If I don’t break the sphericals… who will?
And whether it holds water or it doesn’t, no hard feelings. I just love language so much, that it upsets me when stuff doesn’t make sense. I swear, my brain demands common sense.
God bless.
I found some entries for the word “arresto” in Portuguese in the Portuguese-English Collins Dictionary 2001 Edition. It can be used to signify a detention or a seizure.
1) Tu e os teus homens estão sobre arresto.
You and your boys are under arrest.
2) Esta suspensão tem fundamentalmente o efeito de um arresto cautelar.
That freeze is, in essence, a preventive seizure.
3) Isso provocou o seu arresto em 1875.
This resulted in his arrest in 1815.