20 Answers: Terminology of Tort Law

Here are the answers to the exercise on tort law terminology published in my previous (March 22, 2018) blog entry:

1) A person who commits a tort: TORTFEASOR

2) An act of force or threat of force that puts a person in fear of imminent harm: ASSAULT

3) Defense against negligence that states that the plaintiff knew of the risk involved and still took the chance of being injured: ASSUMPTION OF RISK

4) An act that annoys or disturbs another person in his use, possession or enjoyment of his property: NUISANCE

5) Liability imposed upon a person due to the act or omission of another: VICARIOUS LIABILITY

6) Unauthorized entry or intrusion on the real property of another: TRESPASS

7) A false statement of fact designed to deceive: MISREPRESENTATION

8) A false and malicious publication (printing, writing, sign, picture) that harms another’s reputation: LIBEL

9) The intentional and offensive touching of another without consent and without lawful justification: ASSAULT

10) Wrongfully depriving a person of the use and possession of an item of personal property: CONVERSION

11) Deceit or deception intended to induce another to surrender something of value or a legal right: FRAUD

12) A false and malicious statement that harms another’s reputation: SLANDER

13) The liability of a manufacturer or seller for injury resulting from a defect in a product sold: PRODUCT LIABILITY

14) Mental anguish or physical pain for which damages may be recovered in tort litigation: PAIN AND SUFFERING

15) A private wrong committed by one person against another: TORT

16) Liability for an injury whether or not there is fault or negligence: STRICT LIABILITY (also called ABSOLUTE LIABILITY or LIABILITY WITHOUT FAULT)

17) A legal doctrine under which a master (employer) is responsible for torts committed by his servants (employees) during the scope of their employment: DOCTRINE OF RESPONDEAT SUPERIOR

18) Two or more people who participate together in the commission of a tort: JOINT TORTFEASORS

19) Wrongful; implying or involving tort: TORTIOUS

20) The intentional confinement of a person without legal justification: FALSE IMPRISONMENT or FALSE ARREST

 

20 Questions: Terminology of the Law of Torts

This is an exercise that I use with my students of Legal English at the Universidad Carlos III in Madrid. After finishing each unit, we often review dictionary definitions of the legal terms and concepts that we’ve discussed in class to make sure they’re clear. Several students who follow this blog suggested that I might make exercises of this nature available here in the event that they may prove useful to other readers.

This first exercise concerns “Tort Law,” akin to the legal discipline that in Spain is most-commonly known as Derecho de daños, i.e., el Derecho de la responsabilidad civil extracontractual). So, here goes…

Please provide a tort law term for the following definitions (Answers will be published in my next blog entry):

1) A person who commits a tort:

2) An act of force or threat of force that puts a person in fear of imminent harm:

3) Defense against negligence that states that the plaintiff knew of the risk involved and still took the chance of being injured:

4) An act that annoys or disturbs another person in his use, possession or enjoyment of his property:

5) Liability imposed upon a person due to the act or omission of another:

6) Unauthorized entry or intrusion on the real property of another:

7) A false statement of fact designed to deceive:

8) A false and malicious publication (printing, writing, sign, picture) that damages another’s reputation:

9) The intentional and offensive touching of another without consent and without lawful justification:

10) Wrongfully depriving a person of the use and possession of an item of personal property:

11) Deceit or deception intended to induce another to surrender something of value or a legal right:

12) A false and malicious statement that harms another’s reputation:

13) The liability of a manufacturer or seller for injury resulting from a defect in a product sold:

14) Mental anguish or physical pain for which damages may be recovered in tort litigation:

15) A private wrong committed by one person against another:

16) Liability for an injury whether or not there is fault or negligence:

17) A legal doctrine under which a master (employer) is responsible for torts committed by his servants (employees) during the scope of their employment:

18) Two or more people who participate together in the commission of a tort:

19) Wrongful; implying or involving tort:

20) The intentional confinement of a person without legal justification:

The Role of Notaries Public in the US

Spanish lawyers soon discover that they have to explain to many of their English-speaking clients the role that Spanish notarios (or civil law/Latin notaries, in general) play in ensuring legal certainty in civil law systems, why notarios must intervene in many seemingly everyday transactions and, ultimately, why they charge what they do(!).

But the opposite is also true: I’m sometimes asked about the role of notaries in the US, and I recently found an excellent answer to that question in an article that I’m sharing in a link below. Published in the Colegio Notarial de Madrid’s journal El Notario del Siglo XXI, the article entitled “¿Qué es lo que hace un ‘notary public’?” was written by José Antonio Márquez González, Mexican notario and member of the International Union of Notaries (UINL). It explains in Spanish and in detail the work of US notaries, providing sample texts in English and an extensive bibliography in the footnotes. It’s available here:

http://www.elnotario.es/practica-juridica/7317-que-es-lo-que-hace-un-notary-public

 

Spelling Differences (American vs. British Usage)

This entry is not specifically on legal language, but several of my students of Legal English at the Universidad Carlos III asked me to summarize for them the basic differences between American and British spelling. I am including here part of a handout I prepared for them in the event it may be of interest to a wider audience.

In researching this I came across an interesting article in the Daily Mail* that outlines the progression of the supposed acceptance of many American spellings in English worldwide. It maintains that as early as the 1880s English language publications began to prefer American spelling, which became even more popular after World War I. Charts appearing on seemit** actually show the years in which certain American terms supposedly surpassed the British (“gray” vs. “grey;” “flavor” vs. “flavour;” “liter” vs. “litre,” etc.)

Nevertheless, translators, legal professionals and students of legal English should be aware of what are still considered the preferred spellings on each side of the “Pond.” There may be some flux and leeway, and some may not view these as set-in-stone rules, but here is a minimal collection of US vs. UK spellings appearing on the Oxford Dictionaries website*** and in other sources:

Words ending in “-er”/“-re”
American Usage British Usage
center centre
fiber fibre
kilometer kilometre
liter litre
theater/theatre theatre
Words ending in “-or”/“-our”
American Usage British Usage
behavior behaviour
color colour
flavor flavour
humor humour
labor labour
neighbor neighbour
Words ending in “–ize”/“-ise”
American Usage British Usage
apologize apologize/apologise
emphasize emphasise
organize organize/organise
recognize recognize/recognise
Words ending in “-yze”/“-yse”
American Usage British Usage
analyze analyse
catalyze catalyse
paralyze paralyse
One “l” vs. two “ll”
American Usage (“l”) British Usage (“ll”)
travel travel
traveled travelled
traveling travelling
traveler traveller
fuel fuel
fueled feulled
fueling fuelling
counselor counsellor
American Usage (“ll”) British Usage (“l”)
enrollment enrolment
fulfill fulfil
installment instalment
skillful skilful
Words with “e” in American English and “ae”/”oe” in British
American Usage British Usage
leukemia leukaemia
maneuver manoeuver
estrogen oestrogen
pediatric paediatric
Nouns ending in “-ense”/“-ence”
American Usage British Usage
defense defence
license licence
offense offence
pretense pretence
Nouns ending with “-og”/“-ogue”
American Usage British Usage
analog/analogue analogue
catalog/catalogue catalogue
dialog/dialogue dialogue
Miscellaneous
American Usage British Usage
airplane aeroplane
check cheque
cozy cosy
curb kerb
draft draught/draft
gray grey
jail gaol
mold mould
plow plough
program programme

* Cheyenne MacDonald. “The future is gray for British English: How American Spellings are taking over the world with ‘flavor,’ ‘center’ and ‘defense’ becoming the norm.” Daily Mail, July 27, 2016. http://www.dailymail.co.uk/sciencetech/article-3711638/The-future-gray-British-English-Graphs-reveal-American-spelling-taken-1880s.html

** “The Decline of British English, Visualized” (author: oakstone) https://steemit.com/steemit/@oakstone/the-decline-of-british-english-visualized

*** https://en.oxforddictionaries.com/spelling/british-and-spelling)

Why are copies of contracts called “counterparts”?

In Anglo-American contract terminology, a copy of a contract is known as a “counterpart.” When a contract is signed, it is customary for each party to the contract to retain a counterpart of the agreement. But why do we need this term?

In English “copy” may have two distinct meanings. The expression “he gave me a copy of his latest article” may imply me dio una fotocopia de su último artículo. But rather than referring to a photocopy, “he gave me a copy of his latest novel” probably means me dio un ejemplar de su última novela. Thus, “copy” can denote la reproducción de un documento (photocopy, facsimile, etc.) as in the first example, or the document itself, un ejemplar del documento, as in the second.

In contract law the expression “counterpart” is used to denote a copy of a contract (ejemplar de un contrato) that may be considered one of several originals of the document. Each party to a contract obviously wants his own “copy” of the agreement (in the sense of ejemplar), deemed to be an original. Clauses to that effect are often included in contracts to underscore that “This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which shall constitute together the same document” or “This Contract is executed in duplicate counterparts, each of which shall have the force and effect of an original.” Counterparts are often used to facilitate contract execution when all of the parties cannot be physically present at the signing. In this case, counterparts of the contract may be signed by different parties and are then exchanged.

The concept of signing a contract in duplicate counterparts, each deemed to be an original, is often expressed in Spanish contracts as firmado por duplicado ejemplar a un sólo efecto, or with similar wording.

What’s the right preposition to use with “right” and “rights”?

Learners of Legal English are often stumped when it comes to deciding which preposition to use in a given expression. Indeed, prepositions pose a stumbling block in many languages, and English is no exception, whether used with nouns, in prepositional phrases or appended to phrasal verbs. This week one of the students in my Legal English course asked me which preposition is used with the noun “right” (or “rights).” Most expressions require “of,” “to” or sometimes “in.” Here are some of the most common (some have two possible options):

Expressions with “OF”:

  • right of assembly (also: freedom of assembly) (derecho de reunion; libertad de reunión)
  • right of asylum (derecho de asilo)
  • right of association (also: freedom of assembly) (derecho de asociación; libertad de asociación)
  • right of establishment (derecho de establecimiento)
  • right of first refusal (derecho de tanteo)
  • right of good reputation (derecho al honor)
  • right of privacy (derecho a la intimidad)
  • right of publicity (also: publicity rights) (derecho a la propia imagen)
  • right of sufferage (derecho de sufragio)
  • right of way (derecho de paso; servidumbre de paso)

Expressions with “TO”:

  • right to counsel (derecho a la asistencia letrada)
  • right to demonstrate (libertad de manifestación)
  • right to due process (derecho a la tutela judicial efectiva)
  • right to hold public office (derecho de acceso a los cargos públicos)
  • right to life (derecho a la vida)
  • right to own property (derecho de propiedad)
  • right to privacy (derecho a la intimidad)
  • right to stand for election (derecho de sufragio pasivo)
  • right to unionize (libertad sindical)
  • right to strike (derecho a la huelga)
  • right to vote (derecho de sufragio activo)
  • right to vote and stand for election (derecho de sufragio)
  • right to work (derecho al trabajo)

Expressions with “IN”:

  • rights in property (derechos reales)
  • rights in patents (derechos sobre patentes)
  • rights in trademarks (derechos sobre marcas), etc.

(One holds rights IN property, a use most often found in the context of intellectual property, and which may actually sound unnatural to nonlawyer native speakers of English).

 

Translating “Cybergrooming”

Last week one of Fundéu’s daily terminology recommendations concerned possible Spanish translations for the term “grooming” or “child grooming,” defined as “a premeditated behaviour intended to secure the trust and cooperation of children prior to engaging in sexual conduct.”*

For “cybergrooming” or “online child grooming,” Fundéu suggests ciberengaño pederasta or engaño pederasta por internet as possible renderings.** But it may be of interest to note that “cybergrooming” is widely known among Spanish penalistas and other criminal law professionals as ciberacoso sexual a menores or ciberacoso sexual infantil, and was included as a specific offense as article 183ter in a 2015 reform of the Spanish Código Penal.*** Ciberacoso sexual (a menores) likewise appears to be the preferred translation for “cybergrooming” in similar legislation in Argentina and Mexico.****

*Raymond Choo, Kim-Kwang. “Online Child Grooming: a Literature Review on the Misuse of Social Networking Sites for Grooming Children for Sexual Offences.” AIC Reports. Research and Public Policy Series, No. 103, July 2009, p. 7.

**http://www.fundeu.es/recomendacion/engano-seduccion-pederasta-grooming/

***Ley Orgánica 1/2015, de 30 de marzo, de reforma del Código Penal.

****Ley 5775 para la prevención de ciberacoso sexual a menores (grooming), Legislatura de la Ciudad Autónoma de Buenos Aires (15 December 2016) http://www2.cedom.gob.ar/es/legislacion/normas/leyes/ley5775.html; Dictamen de la Cámara de Diputados de 14 de diciembre de 2016 para la Reforma del Código Penal Federal para tipificar los delitos de ciberacoso sexual y acoso sexual, así como para sancionar la difusión de fotografías o videos con contenido sexual sin la autorización de la persona afectada (http://www.excelsior.com.mx/nacional/2016/12/14/1134389).