Contemporary Readings in Law and Social Justice

Volume 4(2), 2012, pp. 724734, ISSN 1948-9137

Legal Translation through the Distorted Lens of Culture:

An EnglishRomanian Case Study
Lavinia NADRAG
lnadrag28@yahoo.com
Ovidius University, Constantza
Alina BUZARNA-TIHENEA (GALBEAZA)
alina_buzarna84@yahoo.com
Ovidius University, Constantza
Alina STAN
costiana_stan@yahoo.com
Ovidius University, Constantza
ABSTRACT. Nowadays, due to the complexity the legal language, a great number
of the members of the public do not fully understand important documents
governing their rights and obligations, the opinions and decisions expressed by a
court or by a tribunal, the regulations and norms embodied in a statute, or the
provisions specified in a contract. The need to clarify legal terminology and
terminological differences becomes a more and more urgent issue, imposed by
factors such as the context of globalization, the necessity to harmonize the
legislation at the level of the European Union, the complexity of economic, social
and political elements which have a deep impact on the legal field, the need for rapid
and efficient resolutions of litigations, especially at international level. Over the last
years, experience has shown that the domain of tortious liability has become the
result of lobbying work for harmonization, being performed both by lawyers and
academics. The main question is whether Europeanization will be accomplished in
the domain of tortious liability, and how will this be achieved, given the diversity of
legal systems and procedures across Europe. In this article, several aspects of the
new tort law have been analyzed, for its better understanding and translation. Firstly,
a brief overview of the tort law provisions of the Romanian New Civil Code was
given. Secondly, a more detailed examination of Chapter IV on Civil liability of the
Civil Code was provided, in order to better clarify the legal terminology and
terminological differences within this legal area.
Keywords: legal language, civil liability, tort, harmonization.

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1. Introduction
The field of law and its special legal language permanently influence the
lives of the members of our society. Although daily dealt with, legal
language is thought to be archaic, complex, sinuous, pompous and
laborious. Abounding in superfluous archaic words, Latin expressions, and
exaggerative syntax constructions, Legal English illustrates the mixture of
languages along centuries that has created the English language generally.
For instance, in the legal field, there are currently used Latin phrases like
inter alia (among others) and per se (in itself). In their turn, the Vikings
brought their own linguistic contribution, introducing into the English
vocabulary words such as egg, husband, law, take, knife. Following the
Norman Conquest of England (1066), French became the official language
of England and the Normans enriched the English legal language with
words such as court, parliament, justice, sovereign, marriage, property,
estate, executor and tenant.1
For several centuries following the Norman invasion, there were three
languages used in England: English (which, in spite of being spoken by the
majority of the population, it was not used in legal matters), French and
Latin (almost all writing was done in these two latter languages). Although
Latin remained the language of formal records and statutes, only the learned
people were speaking it and, therefore, it never became the language of
legal pleading or debate. The enactment of the Statute of Pleading (1356)
brought new developments in the field of English legal language, since this
Act stated that all legal proceedings should be in English, but recorded in
Latin (however, French continued to be used in legal pleadings until the
seventeenth century in some areas of the law). Along with the developments
in the area of the printed word, in order to impress and to ornate their texts,
some writers started to use words derived from Latin (this is how legal
words such as adjacent, frustrate, inferior, legal, quiet and subscribe came
to be used in legal English texts) and a Latin word order. Consequently, this
multiplicity of linguistic influences contributed to the creation of a rich and
diverse language, with a complex grammar and many synonyms.2 In its
turn, Romanian legal language includes a considerable body of technical
vocabulary and archaic words. Similarly to English legal language,
historical factors and stylistic tradition explain its present-day character, the
factors influencing its evolution being of legal, historical, political and
sociological nature. For instance, a lot of old phrases and words can be
traced back to the Old Romanian words (artare prob, tocmire
convenie), Latin, numerous Paleoslavonic terms (canon pedeaps fizic/
tortur).3
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2. Background: The Europeanization of Legal Language

Nowadays, due to this complexity of the legal language, frequently, a great
number of the members of the public do not fully understand important
documents governing their rights and obligations granted by a constitution,
the opinions an decisions expressed by a court or by a tribunal, the
regulations and norms embodied in a statute, or the provisions specified in a
contract. Even those persons professing in the legal field may have more or
less serious difficulties in understanding both the language they use and the
one of their colleagues, as indicated by the great number of cases revolving
around the meaning of some word or phrase.4
The need to clarify legal terminology and terminological differences
becomes a more and more urgent issue, imposed by factors such as the
context of globalization, the necessity to harmonize the legislation at the
level of the European Union, the complexity of economic, social and
political elements which have a deep impact on the legal field, the need of
rapid and efficient resolutions of litigations, especially at international level.
Moreover, a very important aspect which should be taken into consideration
is that translation (especially when it comes about legal texts) is not simply
a matter of linguistic transference but, as Renata Vystrilov stated in her
work, Legal English, it is an attempt to communicate someone elses
message through another language. It is an attempt to communicate one
world in terms of another.5 Therefore, for this purpose, in order to perform
an effective and accurate translation, the translator has to focus on a
complex, multi-aspect and multidisciplinary network of factors such as the
interpretation or intended use of the translation, the facilitation of the
original text, the context of situation, the rhetorical context, the
communicative purpose, the textual organization, the generic knowledge.
Moreover, for a pertinent and adequate translation, translators must have
basic knowledge of the legal cultures and systems of the source and target
languages, in order to be aware of the differences of these cultures and
systems and to effectively manage the issue of terminological differences
between the two languages and even the absence of equivalent concepts.
Since law is the result of the society where it functions and it cannot be
strictly enframed by a set of organized rules, not only does a better
understanding of a particular legal culture imply the focus on legal rules,
concepts and categories, but also on customs and the social context of the
respective legal system, an interdisciplinary approach being therefore
imperiously necessary. There are cases where the translator has to deal with
terms for which there are not terms with equivalent legal meanings in the
target language. In such situations, the translator usually resorts either to
neologisms or to the repetition of the word in the source language6,
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accompanied by an explanatory translators note. Other situations requiring

an interdisciplinary approach and a higher degree of attention are the
existence in the target language of more than one different concept for a
single legal term in the source language or the existence of different
meanings, for the same term, across different branches of law (such as
private and public law).
Since different legal systems have been created against the background
of diverse cultures (in this respect, the translation process being understood
as a form of cultural interaction, where the translator replaces culture
elements in functional ways and adapts the text to the culture norms of the
target language7) in order to meet the necessities of different nations, this
led to inadvertences and incongruities of a great number of legal terms and
of their understanding, between various national systems. Consequently,
many translation theorists agree that absolute equivalence is nothing more
than a utopia. In this sense, for example, when discussing the fact that each
legal system is the result of a particular history, culture and socio-economic
principles and has its own conceptual system, Susan Sarcevic author of
plurilingual dictionaries and of several studies on legal translation theories states that legal terminology of different legal systems is, for the most part,
conceptually incongruent,8 i.e. the quest for perfect identical concepts in
many languages is a dangerously misleading, chimerical and almost
infeasible one. Thus, law and legal language are social constructs and the
diversity of notions used for the same process is the result of a metaphysical
phenomenon.9
In an enlarged Europe, where the European legal instruments have to be
translated into a more and more increasing number of official languages, the
lack of, and the vain efforts to reach, linguistic equality lead to a lot of
complex and costly problems of translation.10 Therefore, those professing
both in the legal field and in the field of legal languages should be aware of
the fact that legal translation is not an approximate process focusing merely
on the linguistic side, but that it implies the understanding and transposition
of legal concepts, as well, from the system of the source language to the one
of the target language, with the subsequent employment of elements of
comparative law. Versatility, carefulness, multicultural knowledge and
interdisciplinary skills are, therefore, among the indispensable instruments
that a translator needs when roaming on the troubled and troubling waters of
multilingual legal terminology.
Over the last years, experience has showed us that, in what concerns the
domain of tortious liability, it is the result of a lobby work for
harmonization delivered both by lawyers and academicians. The legislation
forcing harmonization has a role of its own, performed especially through
solutions provided by European Courts. The main question is whether
727

Europeanization will be accomplished in the domain of tortious liability,

and how will this be achieved, given the diversity of legal systems and
procedures across Europe; moreover, it should be also taken into
consideration the fact that the attempts to harmonize the definitions of legal
concepts such as damage (i.e. pecuniary or non-pecuniary damages) or
harm are approaches situated beyond the efforts of the legislator.11
History shows that, in Europe, the foundations of the law of obligations
and, in particular, of tortious liability is based on a long-standing common
cultural matrix. Going as far back as the heritage left by the Roman Law
and the experience of the first universities in the 12th century, jus commune
or usus modernus pandectarum (i.e. national law),12 all the above are a good
example of the existence of common roots in relation to compensation for
damages arising from the violation of subjective rights. Despite these
common roots and despite the circulation of legal ideas, the material
differences are strictly linked to national needs and to the financial sources
available for delivering compensation to victims.
It is important to point out that, at present, the approximation of liability
rules and, in particular, the law of damages is taking place through the work
of the national courts and jurisprudence, especially through conscious or
unconscious legal borrowings, through legal transplants, through
confrontation and exchange of information, and as a result of cross-border
litigation.
3. Lifting the Veil: the Ambiguities of Romanian Legal Vocabulary in
Tortious Liability
In this article, several aspects of the new tort law will be analyzed, for its
better understanding and translation. Firstly, a brief overview of the tort law
provisions of the Romanian New Civil Code will be given. Secondly, a
more detailed examination of Chapter IV on Civil liability of the Civil Code
(Obligations Arising from the Causing of Harm) will be provided. This
chapter is composed of four parts: general principles of liability (Arts.13491357); compensation for harm caused to the life or health of a citizen
(Arts.1387-1391); compensation for harm against health and compensation
for moral harm. Many of the 46 articles in the chapter are composed of
multiple sections and sub-sections. On the joint liability of two or more
causers of harm (Art.1382); On vicarious liability of several kinds (of
legal persons for their employees Art.1373; of parents for minor children
Arts.1372- animals and goods ; of those responsible for the supervision of
citizens who are adjudged incompetent or of limited competence
Arts.1375); on the right to seek indemnification the right of regress in
Romanian terminology by the person who has been required to pay
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damages against the person who actually caused the harm Art.1395); A
court may lower the amount of compensation for harm caused to a citizen
with consideration of his property status, with the exception of cases when
the harm was caused by intentionally committed acts.
Civil liability has two forms, namely tort and contractual liability, both
being based on the principle of compensation for patrimonial or nonpatrimonial damage caused by an unlawful and culpable conduct. The
essence of civil liability, in both its forms, tort and contractual liability13,
consists of the idea of reparation of a damage. As soon as a legal right or a
legitimate interest of a person has been harmed or infringed, by provoking a
damage or harm, the author of this harm must redress it and is obliged by
the law to assume responsibility for his doing.14
Some authors15 state that tort law has the function of retribution, as
penalty in criminal law, meaning that its goal is to protect the subject of a
civil right from the negative consequences of the wrongful act. Civil law
imposes upon every member of the community certain civil obligations and
duties in respect of every other member in regard to their property, body
integrity or reputation on the basis of Restorative Justice. This concept
emphasizes the idea that justice must reconsider its attitude towards the
triad criminal-victim-society, and that it has to extend the contacts with the
community it serves by involving in remedying antisocial behaviors.
According to the Romanian Civil law, one must put aside such breaches
of duty that involve an illegal act or criminal intent, where the criminal
liability includes the civil one. In the case where liability is imposed for
doing something that causes harm, the civil compensation is similar to
sanctions in criminal law. Civil law, and tort liability as opposed to
contractual liability, embraces a much broader set of relationships than the
criminal law, having a long history of sophisticated laws, like the Hamurabi
Code, the Lex Aquilia and the Corpus Iuris Civile. Thus, the principle
governing the civil wrong is embodied in the Latin maxim: damno, dolore,
incommodo, calamitate, injuria16 that created in the Roman law the duty to
exercise due care in relation with others, by acting reasonably safe, so that
the other persons may not suffer an injury. Roman jurists and the Roman
legal community were committed to the identification of the delineation
between what is just and what unjust, and therefore the Institutes of
Justinian and other sources of Roman law reflected an endeavor to give
each man his due right, and comprise precepts for all Romans Honeste
vivere, alterum non laedere, suum cuique tribuere.17 Civil law recognizes
certain cases in which one person having been injured by the fault or
negligence of another is entitled to recover the damage which s/he has
suffered by reason of such injury. The Romanian terms daun,
rspundere, cauzat pe nedrept are built on the same Latin concept. As
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stated above, legal language is a silent reminder of the languages that were
previously used in official documents in a specific region or country (i.e.
Latin was, for centuries, lingua franca for judges and lawyers).
We can state that criminal policy, both at national and European level, in
the field crime prevention has represented a basis of the politics of
enforcing the public morals and serving justice and based on similar
rationale, tort is a fundamental institution in civil law, in which restitution to
the victim is mandatory. It articulates fairness in terms of other concepts, for
example, wrong, loss, responsibility, and repair. Tort law makes
corrective justice more explicit by filling out the content of these concepts.
In the center of this concept is the duty of repair the duty to pay
compensatory damages which is triggered by the wrong full breach of a
general duty of non-injury. From the very beginning, a principal function of
the civil justice system was to repair the harm caused to any person injured
by another's careless or intentional actions, insofar as that is possible.
Under the provision of article 1359 New Civil Code., the author of the
illegal act is obliged to compensate for the caused injury even when this is a
result of encroachment upon an interest of another. The 998 Article of the
Former Civil Code established that every human action that causes an
injury to another person requires that the one that caused the injury should
fix it. The legal provisions of Article 999 stated that everyone is
responsible not only for the damage that he caused by himself, but also for
the one caused by his negligence or recklessness. Thus, civil liability in the
New Civil Code exclusively envisages injury, not loss or damage, either
material or moral.
A tort may be described as an extra-contractual wrong (i.e. a harm that
was generated independent of contract).18 It is clear that a legal action in
compensation for a wrongful act in the limits of a contract cannot be
exercised by a person who is not a party to the contract; and the same
principle extends to an action of tort arising from a contract for an injury to
the rights of the plaintiff in the form of an act or omission.
In the Romanian legal doctrine, torts may be divided into three classes:
-those in which a party is liable simply because s/he has done or omitted
to do something that was legally required, as an infringement of right or a
breach of duty;
-secondly, those in which the conduct of the wrong-doer has been
unlawful only by reason of his failure to exercise proper care and skills in a
specific situation;
-those where the law involves an element of moral or legal misconduct.
The legal institution of tortious liability refers to the concept of a priori
duty that incumbents in order to respect the personality rights, property
rights, and ex post is translated into the obligation to redress the harm
730

caused by the wrongful action. Civil liability is a legal construct based on

the moral duty to respect others rights and have a socially responsible
conduct. Thus, it can pledge to use moral values like social good, justice,
and equity.19 The tortious act can be established only in a macro-social
relationship with the concept of reasonable person. The principle of
reasonable person is a Roman legacy where the standard of conduct was
bonus pater familias.20 Thus, in order to establish in concreto that an
individual is responsible for an actual harm, we take the standard of conduct
of the reasonable person. Duty, negligence and recklessness are determined
in abstracto, have as a guide those considerations that regulates the conduct
of a prudent and reasonable man.
In his book, The Concept of Civil Wrong, Peter Birks concludes that the
illicit conduct that causes damage can be defined as the breach of a legal
obligation that protects the interests of another individual. He also states
that the pillar of tort is not only the actual harm, the remote effect, but the
breach of an extra-contractual obligation:
-the plaintiff must have suffered damages;
-the damage must have been caused by the defendants conduct (that is,
factual causation);
-the defendants conduct must have been a proximate cause of the loss
(i.e. legal causation); the defendants conduct must have been negligent (in
breach of the standard of care established by law);
-there must be a duty recognized by law to avoid this damage;
To establish the liability for tort the following elements must be proved
in Romanian juridical system. Perhaps most striking is the resemblance
between the U.S and the Romanian doctrinal analysis of the main conditions
specific to tort liability, as the composite parts or elements of a tort:
The incidence of harm or damage; Here we must stress that damage is
an essential element of the tort, and lato sensu of civil liability. In the legal
doctrine it represents the negative consequence (patrimonial or nonpatrimonial) suffered by a person, as the immediate result of the illicit act
committed by another person. As the definition shows, the damage must be
the result of the infringement of a subjective right or a legitimate interest.
Evidently, the tort liability will take action in the case of damage as the
consequence of breaking a subjective right (for example the breaking of any
real rights, like the right to integrity, etc.)
It is questionable if the tort liability can be engaged for breaking a
legitimate interest.
Illegal behavior on the part of the causer; being defined as the conduct
or act that affects or breaks the legal provisions, causes an infringement of
subjective rights or legitimate interests of a person are being harmed. In the
former Civil Code it was stated that any act that causes damage is entitled
731

to full compensation for harm, but in the New Civil Code article 1349 it is
provided the definition of an illicit act. We can conclude that it must be a
wrongful conduct.
Causal connection between the illegal behavior and the damage. In the
legal doctrine this causal connection is established after a sine qua non
condition, that can be translated into but for, or necessary cause. We must
be asking whether the plaintiffs injury was reasonably foreseeable. That
makes the question of liability sensitive to different descriptions of that
injury and hence to different descriptions of the risk created by the
defendant. By acting as he did, the defendant created a risk that an injury
might occur in one manner or another to someone or other.
Fault on the part of the person causing damage (displaying a mental
attitude towards the illicit act that causes the damage, except when liability
ensues regardless of fault); fault (faute)/ mistake, in the wording of art.
1349 that any person who violates, intentionally or negligently the required
standard is liable to fault.21 For intentional wrongs, the intentional torts
of today, the requisite intent, or dolus, was provided by the defendants
desire to accomplish the act, irrespective of whether he was aware that the
act constituted an invasion of the plaintiffs rights. Culpa was interpreted
as a violation of a duty that is imposed by law. The legal provisions state
that a person is responsible even for the lightest guilt, or culpa levissima.22
4. Conclusions
Several problems arise from these legal provisions. As we stated before, the
individual who commits a wrongful act is responsible for the ordinary
consequences which are likely to result in this case. Moreover, generally
speaking, he is not liable for any damage that is not the natural consequence
of this conduct, unless it is shown that he knows, or has reasonable means
of knowing (i.e. the liability of a professional). There is general agreement
that these objectives, however imperfectly accomplished, include: returning
the party who has suffered a loss to the position he enjoyed before the
wrongful activity; requiring the wrongdoer to disgorge the monetary or
imputed benefit derived from his actions; and by the remedy meted out, or
by its example, deterring the wrongdoer and others in a similar situation
from engaging in the same wrongful and injurious pursuit. Another manner
of describing tort goals has been to order them as serving either goals of
corrective justice and morality or efficiency and deterrence.
Therefore, if the Romanian legal language will generally adopt the use
of damage, it will put an end to the ambiguities that exist in the legal
taxonomy of tort liability. Damages do not refer to a strict material or
subjective loss, but to a wider notion, i.e., to the negative effect of an illicit
732

conduct. This fundamental concept in tortious liability can be explained by

the eponymous term in contractual liability. Based on a fortiori reasoning,
it can be concluded that damages provide an extended understanding of
civil liability. If the word loss or the word infringement address a
specific type of repercussion, by using damages, which can be the result
of an action or inaction, the Romanian legal vocabulary has adequate means
for ending the misleading use of variants of the same word. It can also stress
that the immediate result of the illicit behavior can take the form of a
material loss, an injury, infringement of a subjective right or violation of an
interest. The French term prjudice has a material understanding and this
causes a lot of ambiguity in abstract matters like tortious liability. The
homogeneity of legal terms is not justified in this matter. The prjudice of
the illicit conduct can also be an inaction and we find ourselves in the
dangers caused by the misleading appearance of words and by the historical
background of French cultural legacy.23 As one can easily notice, the French
and Romanian legal technolect are closer than any other technical French
vocabulary. Given the process of bringing the European legal systems on a
common ground, it is mandatory to take into account the terms used by the
European Commission, which is responsible for the legal translation of
official documents.24
NOTES AND REFERENCES
1. Haigh, Rupert (2009), Legal English. Second Edition, New York: RoutledgeCavendish, 1.
2. Ibid., 2.
3. Botezat, Onorina, Gabriela Sarbu, Mihnea Drumea, and Ana Maria ChisegaNegril, Expanding Communication in Legal Matrix Vocabulary. Legal English
versus Legal Romanian, Recent Advances in Applied Mathematics, 64.
4. Tiersma, Peter M. (1999), Legal Language. Chicago and London: the
University of Chicago Press, 51.
5. Vystrilov, Renata (2000), Legal English, Acta Universitatis Palackianae
Olomucensis, Facultas Philosophica 73: 96.
http://publib.upol.cz/~obd/fulltext/Anglica-2/Anglica-2_07.pdf.
6. Onufrio, Maria Vittoria (2007), Harmonization of European Contract Law
and Legal Translation: A Role for Comparative Lawyers, in Dret, Revista para el
Analisis del Derecho, University of Palermo. Barcelona, April 2007: 4.
7. Botezat, Onorina (2011), The Complexity of Legal Translation: Social and
Cultural Bounds Aspects, Heather Ridley, Michael Farber and Susan Hull, eds.
Proceedings of the 7th World Congress on the Advancement of Scholarly Research in
Science, Economics, Law and Culture. 12th March 2011, The 1st IISHSS
International Conference on Law and Social Order, Constanta, Vol. II, New York:
Addleton Academic Publishers, 229.
8. Sarcevic, Susan (1989), Conceptual Dictionaries for Translation in the Field
of Law, International Journal of Lexicography: 278.
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9. Heikki E. Mattila, S. (2006), Comparative Legal Linguistics. Ashgate

Publishing Limited, 122.
10. Onufrio, Maria Vittoria, op. cit., 3.
11. Koziol, Helmut (2008), European Tort Law, Edited by the Institute for
European Tort Law. NewYork: SpringerWien, 557-558.
12. Zimmermann, Reinhard (1992), The Law of Obligations, Roman
Foundations of the Civilian Tradition. Cape Town: Juta & Co., 902. This basic
concept, which is today central to most European legal systems, was introduced by
natural jurists, in particular by Samuel von Pufendorf (Ius Naturae et Gentium,
1672). Another example of the common matrix is the well-known fact that the
French Civil Code and the Burgerliches Gesetzbuch (i.e. German Civil Code) have
long influenced most continental jurisdictions with respect to the law of obligations
and the law of damages.
13. The contractual liability is defined in the obligation of a debtor to
compensate the harm caused to his creditor by non-compliance, inadequate
compliance and delay in fulfilling his obligations.
14. Dogaru, Ion and Pompili Drghici (2010), Bazele Dreptului Civil. Vol.II,
Teoria general a obligaiilor. Bucharest: C.H. Beck, 245.
15. Romoan, Ioan Dorel (2008), Vinovia n dreptul civil roman. Bucharest:
All Beck, 28.
16. Zimmermann, Reinhard, op. cit., 1004.
17. to live justly, not to injure another and to render to each his own.
18. A common example in many textbooks is the negligent conduct of a carrier
towards the merchandise. If, by some careless act he damages the goods entrusted to
him, he will commit a breach of the contract of transport that he signed, but he is
also guilty of a tort if a third party sufferers a loss. He can be liable of tort if the
contract is annulled, for everyone is bound to take care that he does not damage the
property of another.
19. Romosanu, Ioan Dorel, op.cit. 17.
20. Boil, Lacrima Raluca (2009), Rspunderea juridic subiectiv, Bucharest:
C.H. Beck, 313.
21. http://civil.udg.edu/php/biblioteca/items/283/PETL.pdf
22. Article 1357 paragraph 2 New Romanian Civil Code.
23. The terminology of Romanian civil law, still in use today, was created
during preparation of the Civil Code of 1864 a direct copy of the French Civil Code
Comparative legal 217.
24. e.g. Article 9 Council Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative provisions of the Member
States concerning liability for defective products
For the purpose of Article 1, damage means:
(a) damage caused by death or by personal injuries;
Articolul 9
n sensul articolului 1, prejudiciu reprezint:
(a) prejudiciul cauzat prin deces sau leziuni corporale.
For other legal terms see Ndrag, Lavinia and Monica Bala (2009), Legal
English Dictionary. Bucharest: Universitara Publishing House; Blacks Law
Dictionary. 8th ed. 2004: 46444646.
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