Incur in delay ... onli in da Pilipins

My professor in several subjects, Judge Mein Paredes, was fond of telling students that the Revised Penal Code contained several mistranslation from Español to English. There are, of course, several examples cited by textbook authors.

How about the New Civil Code?

I think due to imperfect translation the NCC has given birth to a few Filipinism in law. I discussed one in a previous post.

Here's another one:

To someone who grows up in English as a second language "incur in delay" is somehow not quite all right. If you google or bing the phrase "incur in delay" the results would be Philippine sites mostly citing Supreme Court decisions or Philippine law books. US Supreme Court decisions do not use the phrase.

So how did this Filipinism creep into Philippine law? Since the Philippine Civil Code is mostly borrowings from the Spanish Civil Code we may find out if we look into the original.

At the end of Article 1169 there is this: (1100a). It means that the Article corresponds to Articulo 1100 of the Codigo Civil; the letter a denotes the Civil Code Commission has amended the article when it was included in the New Civil Code.

Here's the article in the Codigo Civil (which can be downloaded here):

And here's the official translation by the Ministerio de Justicia of Spain:

Instead of "delay", the Ministerio de Justicia used "default" which according to De Leon and others is the more appropriate term. Just the same, the phrase is awkward. We can now see that the phrase resulted from a word for word translation.

I think the better and idiomatic translation is:

                                    

which is found here (click on the image to get to the download site):

The more idiomatic equivalent in English of incurren en mora and its derivatives, according to Linguee,  are late payments,  in arrears, comes into default, shall be in default, etc. The word incurren is not translated at all.

Vitug correctly used the phrase here:

Also De Leon here:

But they both revert to "incur in delay" in the rest of their discussions of Art. 1169.

BTW, mora is not Spanish but a  Latin term used in Roman law to mean "in delay", or "in default" according to  USLegal.  Delay in Spanish is demora while default is defecto.

We can forgive the Civil Code Commissioners. They were more conversant with Español than English. Sometimes they carry Spanish prepositions into English. It can be clumsy, however, to translate, say, consiste en  as consists in, right?

So, all together now: Not onli in da Pilipins but also en Espanya tambien!

References:

Saturday typos, 26 December 2015

Happy holidays to everyone!

From a second reading of the book Comments and Cases on Obligations and Contracts, 2010 Edition by De Leon and De Leon:

Page 14 -

Page 15 -

Page 17 -

Page 20 -

Whether ... or not? Whatever.

This post was long in coming because I was busy adding my two-centavos worth to a blog featuring my former workplace. See here.

When I first studied law a long, long time ago in another universe I always found it jarring to read portions of jurisprudence which go this way:

(1) "Whether or not the right to recover upon the civil liability of an accused arising from the crime, may be waived;
(2) "Whether or not such waiver may be made in behalf of the minor heirs by their mother, who is not their judicial guardian;
(3) "Whether or not the waiver in favor of the Mindanao Bus Company, as employer of the appellant, wipes out his personal civil liability for the crime, and
(4) "Whether or not liability to subsidiary imprisonment "attaches in case of insolvency and failure of the accused to pay the indemnity awarded in the judgment.

I learned and have always used "whether or not" to mean "regardless".

My favorite ponente then was Fred Ruiz Castro. Here's how he opened one ponencia:

The vital issue in this case is whether the dismissal of the eight (8) respondent employees by the petitioner Republic Bank (hereinafter referred to as the Bank) constituted an unfair labor practice within the meaning and intendment of the Industrial Peace Act (Republic Act 875). The Court of Industrial Relations (CIR) found it did and its decision is now on appeal before us. The Bank maintains that the discharge was for cause. (Republic Bank vs. CIR, GR. No. L-20303, Sep. 27, 1967)

Other ponentes like Isagani Cruz, my favorite when I went back to law school, starts his ponencia this way:

 The sole issue raised in this case is whether or not the private respondent has a cause of action against the petitioners for their encashment and payment to another person of certain crossed checks issued in her favor. (Associated Bank vs. CA, GR. No. 89802, May 7, 1992)

The Grammarphobia Blog says either is correct:

Whether … or not?
MARCH 21ST, 2013
Q: When you use “whether,” do you need “or not”? I find “whether” being used alone for “if,” and I wonder what is correct.
A: In the phrase “whether or not,” the “or not” is often optional. When the choice is up to you, you can generally use either “whether” or “if.”
But you definitely need “or not” when you mean “regardless of whether,” as in, “I’m out of here whether you like it or not!”

I still prefer the plain "whether" unless I mean "regardless". And Bryan Gardner is on my side.
Here's the usage from his The Redbook, A Manual on Legal Style, Third Edition:

And from Garner's Dictionary of Legal Usage, Third Edition:

References:

Saturday typos, 19 December 2015

From the Revised Rules of Criminal Procedure Annotated, 2012 Edition by Manuel R. Pamaran:

Page 8 -

Page 229 -

Page 278 -

Page 312 -

Maceda Recto mix up

Ok, I am giving myself a break from reviewing the civil code for tomorrow's exam by posting this.

On page 241 of the San Beda 2014 Memory Aid in Civil Law we read this:

Methinks that they got it reversed.

Prelims

Prelims tomorrow and the next two days thereafter. No posting.

Saturday typos, 12 December 2015

I'm going back through Paras's texts for our Civil Law review. For obligations and contracts and related titles, I am using Civil Code of the Philippines, 2008 Edition. I think not much have changed with the book except for new citations. For that I'll supplement the book with other texts of more recent edition. Paras's is like vintage wine; it tastes better with age.

On page 3,

Page 7,

Page 9,

Persons of interest

I am a fan of the tv series Person of Interest. The wikipedia defines a person of interest in this entry.

But what does the Civil Code of the Philippines mean by "two or more persons who do not have the same interest?"

I wrestled with this enigma since Oblicon 101 under Prof. Breech Largo but somehow failed to shoot him the question. Prof. Largo's recommended text was De Leon's Comments and Cases on Obligations and Contracts. The newest edition back then was the  2010 Edition. On page 77 here's how the authors discussed the 3rd paragraph of Art. 1165:

That does not enlighten us one bit. Neither does Vitug nor Jurado; they just quote the phrase as is.

But I think Paras tried - but failed to educate me - on page  117 of Civil Code of the Philippines, Vol. IV, 2008 Edition:

So let's do a Harold Finch (you've got to watch Person of Interest to know him) and piece a few things together.

Most of the provisions of the New Civil Code of the Philippines were lifted from the Spanish Codigo Civil. (Check a previous entry here referring to the Codigo Civil). Either they were translated directly or amended during the translation.

Article 1165 is supposed to be a direct translation, not an amended one, from Articulo 1096. Which is why there is the number 1096 enclosed in parentheses at the end of Art. 1165. Were it an amendment translation there should have been (1096a) instead of (1096).

But Articulo 1096 reads like this:

And the 2009 English edition of the Spanish Civil Code reads thus:

Harold would say that there is no cause for interest here.

Saturday typos, 5 December 2015

From the Reviewer on Commercial Law, 2014 Ed. by Jose R. Sundiang Sr. and Timoteo B. Aquino:

Page 41 -

Page 46

Page 61

Page 84

Back on the internet

I am finally back on the internet after two weeks of a dead telephone line. They said that the third time is the charm. After my third visit to the PLDT office, their contractors finally called by cellphone asking for directions to our home.

I instead went to meet them at the data cabinet of PLDT where the Falco techs (PLDT contractor) were untangling a veritable spaghetti of jumper wires.  There were columns of racks in the cabinet. Each rack has rows of strip rail bars where the ends of the jumper cables should have been neatly tucked into.

But the rail bars were hanging from the racks and many jumper cables were spliced into rattails and without terminal caps. When the exposed rattails corrode you will have slower connection and eventually a dead line like ours.

No wonder it takes days to isolate and locate the jumper that leads to the wire that goes to your home. My CSAT electronics teacher, Ondo Tarona, would have failed me if my wires were like that.