glossary 13 March 2007

course of dealing 交易过程
指某一特定交易的当事人之间一系列先前的内。美国《统一商法典》第1-205条规定，它在解释当事人的意思表示和其他行为时将正当地被认为确立了一个理解的共同基础。

derogation
1）（法律、合同、条约等的）部分废除
指后来制定的法律规定限制原先法律的适用范围或强制力，从而导致其部分废除。

2）废止；取消 指制定法(statute)全部或部分地废止或取消普通法上的权利。

abrogation: 整部法律被废止或宣告失效。

China's next revolution

Property rights in China

Mar 8th 2007
From The Economist print edition

A new property law is a breakthrough, even though it raises hopes that one-party rule may dash

SOME 2,500 years ago, one of Confucius's big ideas was the "rectification of names". If only, he argued, sons would behave filially, fathers paternally, kings royally and subjects loyally, all would be well with the world. A faint echo of this thesis has been resounding this week in the cavernous auditorium of Beijing's Great Hall of the People, where nearly 3,000 delegates to China's parliament, the National People's Congress (NPC), have been enjoying their annual fortnight of wining, dining, snoozing and pressing the "yes" button. Living up to one's name poses something of a problem for the Chinese Communist Party, which dictates the laws the NPC will pass, and whose name in Chinese literally means "the public-property party".

To such a party it must be an ideological embarrassment that China has such a large and flourishing private sector, accounting for some two-thirds of GDP. So one law due to receive the NPC's rubber stamp this month, giving individuals the same legal protection for their property as the state, has proved unusually contentious. It was to be passed a year ago, but was delayed after howls of protest from leftists, who see it as among the final of many sell-outs of the ideas of Marx, Lenin and Mao Zedong, to which the party pretends fealty.

The party's decision to enact the law in spite of that resistance is a great symbolic victory for economic reform and the rule of law. Clearer, enforceable property rights are essential if China's fantastic 30-year boom is to continue and if the tensions it has generated are to be managed without widespread violence. Every month sees thousands of protests across China by poor farmers outraged at the expropriation of their land for piffling or no compensation. As in previous years, placating those left behind in China's rush for growth has been a main theme of the NPC (see article).

In the cities, and of greater importance to the decision-makers pushing the law through, a growing middle class with its wealth tied up in houses wants to pass these assets on to their only children. These people are anxious about the security of their property and, like their fellows in the countryside, are becoming more assertive. In other countries the emergence of this group as an important political constituency has been followed by an unstoppable drift towards greater pluralism.

A journey of a thousand steps

In the short term, however, do not expect too much. The latest law is only one step in the slow trudge China is making out of the blind alley of Maoism. One big change in 2002 allowed businessmen to join the Communist Party, thus turning the revolutionary vanguard into a networking opportunity for bosses. In 2004 China changed the country's constitution to enshrine private-property rights. But the constitution is less a prescriptive document than a constantly changing description of what has just happened. So nothing changed.

This latest law, likewise, will not bring the full property-rights revolution China's development demands. Indeed, it will not meet the most crying need: to give peasants marketable ownership rights to the land they farm. If they could sell their land, tens of millions of underemployed farmers might find productive work. Those who stay on the farm could acquire bigger land holdings and use them more efficiently. Nor will the new law let peasants use their land as security on which they could borrow and invest to boost productivity. Nor, even now, will they be free from the threat of expropriation, another disincentive to investment. Much good land has already been grabbed, and the new law will merely protect the grabbers' gains.

This law cannot in itself resolve the murkiest question: who owns what? This is especially true in the countryside, where the mass collectivisation during Mao's Great Leap Forward of half a century ago left farmland "collectively" owned. Peasants have since been granted short (30-year) leases. But even outside agriculture it is often unclear whether a "private" enterprise is really owned by individuals or by a local government or party unit. Conversely, some "collective" or "state" enterprises operate in ways indistinguishable from the private interests of their bosses. Moreover, should an underdog try to use the new law to enforce his rights, the corrupt and pliant judiciary would usually ensure he was wasting his time. Since the Cultural Revolution, when the NPC passed just one law between 1967 and 1976, the legislature has been legislating quite prolifically. But the passage of laws is not the rule of law.

Which leads to a final obstacle: without an accountable executive branch, the necessary reform of the legal system is not going to happen. As the passage of the property law itself demonstrates, the party is showing itself somewhat more responsive to public opinion than it was in the past. But it still runs a government that does its best to silence most dissenting voices, strictly controls the press, and lavishes resources on the best cyber-censorship money can buy. Property rights are a start; but only contested politics and relatively open media can ensure that they are enforceable.

Petty-bourgeois fanaticism can be good for you

No revolution today then. Yet in the long term the leftist opponents of China's property law are surely right to be worried about what has been begun this month. They understand the law will entrench the rights of the carpet-baggers who have looted the state as it has privatised assets. They also understand that the law, for all its technicalities, does not chime with an avowedly communist government.

The leftists derive their theory not from Confucius, but from Marx. Were the latter writing today, he would surely see in China a revolution waiting to happen—or perhaps two. One is the bourgeois revolution led by the emerging property-owning middle class that the new law will help. The other is the potential for the simmering resentment in the countryside to boil over, perhaps in frustration at the law's shortcomings. Property rights are at the root of both—which is why the dozing NPC delegates may have started a process this month that will one day change their country completely.

source: http://www.economist.com/opinion/displayStory.cfm?Story_ID=8815075

A short history of everything

That's the book I've been, and could not afford to stop, reading. It's interesting not only in the sense as conveyed by the book reviews as below, from the Internet, but also in the sense that it poses a challenge of English vocabulary, retrieving the prefixes, word roots and suffixes of celtic, latin, french, normanic....origins. My pleasure of reading is doubled.

Highly recommended!

内容简介
由一个旅游作家来写地球的科学简史，这个企划与过程真是太有趣了！

作 者BillBryson是国内知名的徒步旅游作家，国内出版过他的旅游书《欧洲在发酵》和《一脚踩进小美国》，为何会写下这本书呢？作者在书里说道：「我 在旅行途中时，透过机舱的窗口看到下面旷阔的月光与海景，一个念头闪过，我发现到我虽然经常旅行但是对自己生活在上面的星球所知甚少。」作者用清晰明了、 幽默风趣的笔法，将宇宙大爆炸到人类文明发展进程中所发生的繁多妙趣横生的故事一一收入笔下。惊奇和感叹组成了本书，历历在目的天下万物组成了本书，益于 人们了解大千世界的无穷奥妙，掌握万事万物的发展脉络。

　 　书中回溯了科学史上那些伟大与奇妙的时刻，引用了近年来发现的最新科学史料，几乎每一个被作者描述的事件都奇特而且惊人：宇宙起源于一个要用显微镜才看 得见的奇点；全球气候变暖可能会使北美洲和欧洲北部地区变得更加寒冷；1815年印度尼西亚松巴哇岛坦博拉火山喷发引发的海啸夺走了10万人的生命；美国 黄石国家公园是"世界上最大的活火山"……而那些沉迷于科学的科学家们也是千奇百怪：达尔文居然为蚯蚓弹起了钢琴；牛顿将一根大针眼缝针插进眼窝，为的只 是看看会有什么事情发生；富兰克林不顾生命危险在大雷雨里放风筝；卡文迪许在自己身上做电击强度实验，竟然到了失去知觉的地步；发现第一批陆地动物鱼甲龙 化石的瑞典古生物学家贾维克居然数错了手指、脚趾的数量，还把化石藏了48年不让别人看……

因 此Bill Bryson花了3年的时间，找寻相关的资料与拜访相关的科学家及学者，以科学的角度及散文体例的方式介绍我们所居住的地球。本书虽然厚达544页，但是 涵盖近年来发现的宇宙、生物、地质、物理化学等科普散文知识，这个厚度，才刚刚好呢！本书也获得亚马逊网站2003 年度优秀图书的推荐！

作者简介

一 九五一年出生於美国爱荷华州，毕业於美国德雷克大学。曾任职於伦敦『泰晤士报』与『独立报』，在英国居住长达二十年之久，同时也为『纽约时报』、《君子杂 �I》、《GQ》与《国家地理杂�I》等刊物撰文。他的兴趣很广泛，在语言学方面着有《麻烦词汇字典》(A Dictionary of Troublesome Words)、《母语》(The Mother Tongue)、《美式英语》(Made in America)等书，皆为非学院派的幽默之作，获致很高的评价；在旅游记事方面，着有《别跟山过不去》、《一脚踩进小美国》、《欧洲在发酵》、《哈！小 不列颠》等书。而最新力作《请问这�Y是美国吗？》（I am a Stranger Here Myself）可说是比尔．布莱森在抒写自己的故乡--美国的作品中，最至情至性、最努力经营的一本书，不仅佳评如潮，还被喻为媲美《哈！小不列颠》的佳 作。目前他和英国妻子以及四个小孩居住於美国新罕布夏州的汉诺威市。

---

英文原版介绍： Editorial Reviews

Amazon.com
From primordial nothingness to this very moment, A Short History of Nearly Everythingreports what happened and how humans figured it out. To accomplish this daunting literary task, Bill Bryson uses hundreds of sources, from popular science books to interviews with luminaries in various fields. His aim is to help people like him, who rejected stale school textbooks and dry explanations, to appreciate how we have used science to understand the smallest particles and the unimaginably vast expanses of space. With his distinctive prose style and wit, Bryson succeeds admirably. Though A Short Historyc locks in at a daunting 500-plus pages and covers the same material as every science book before it, it reads something like a particularly detailed novel (albeit without a plot). Each longish chapter is devoted to a topic like the age of our planet or how cells work, and these chapters are grouped into larger sections such as "The Size of the Earth" and "Life Itself." Bryson chats with experts like Richard Fortey (author of LifeandTrilobite) and these interviews are charming. But it's when Bryson dives into some of science's best and most embarrassing fights-- Cope vs. Marsh, Conway Morrisvs.Gould --that he finds literary gold.

From Publishers Weekly
As the title suggests, bestselling author Bryson (In a Sunburned Country) sets out to put his irrepressible stamp on all things under the sun. As he states at the outset, this is a book about life, the universe and everything, from the Big Bang to the ascendancy of Homo sapiens. "This is a book about how it happened," the author writes. "In particular how we went from there being nothing at all to there being something, and then how a little of that something turned into us, and also what happened in between and since." What follows is a brick of a volume summarizing moments both great and curious in the history of science, covering already well-trod territory in the fields of cosmology, astronomy, paleontology, geology, chemistry, physics and so on. Bryson relies on some of the best material in the history of science to have come out in recent years. This is great for Bryson fans, who can encounter this material in its barest essence with the bonus of having it served up in Bryson's distinctive voice. But readers in the field will already have studied this information more in-depth in the originals and may find themselves questioning the point of a breakneck tour of the sciences that contributes nothing novel. Nevertheless, to read Bryson is to travel with a memoirist gifted with wry observation and keen insight that shed new light on things we mistake for commonplace. To accompany the author as he travels with the likes of Charles Darwin on the Beagle, Albert Einstein or Isaac Newton is a trip worth taking for most readers.

FromAudioFile
In his first major work in three years, Bryson takes on, well, everything. From the components of the atom to the size of the universe to the age of the Earth, Bryson describes the history behind scientific discovery. Sometimes mystified, often admiring, Bryson regales listeners with the follies and feats in science. It's amazing how much we know and how we found it out. It's astounding, however, how much we have yet to learn. Listeners may have to work a bit harder in this departure from Bryson's usual travel writing. His easy pace and sincere delivery, however, make names, dates, and concepts digestible. It's a pleasure to hear Bryson's voice, like that of an old friend, remind us how incredible existence is.

FromBooklist
Confessing to an aversion to science dating to his 1950s school days, Bryson here writes for those of like mind, perhaps out of guilt about his lack of literacy on the subject. Bryson reports he has been doing penance by reading popular-science literature published in the past decade or two, and buttonholing a few science authors, such as Richard Fortey (Trilobite!Eyewitness to Evolution, 2000). The authors Bryson talks to are invariably enthusiasts who, despite their eminence, never look on his questions as silly but, rather, view them as welcome indicators of interest and curiosity. Making science less intimidating is Bryson's essential selling point as he explores an atom; a cell; light; the age and fate of the earth; the origin of human beings. Bryson's organization is historical and his prose heavy on humanizing anecdotes about the pioneers of physics, chemistry, geology, biology, evolution and paleontology, or cosmology. To those acquainted with the popular-science writing Bryson has digested, his repackaging is a trip down memory lane, but to his fellow science-phobes, Bryson' s tour has the same eye-opening quality to wonder and amazement as his wildly popular travelogues.

Review
"Stylish [and] stunningly accurate prose. We learn what the material world is like from the smallest quark to the largest galaxy and at all the levels in between . . . brims with strange and amazing facts . . . destined to become a modern classic of science writing."
―The New York Times

"Bryson has made a career writing hilarious travelogues, and in many ways his latest is more of the same, except that this time Bryson hikes through the world of science."
―People

"Bryson is surprisingly precise, brilliantly eccentric and nicely eloquent . . . a gifted storyteller has dared to retell the world's biggest story."
―Seattle Times

"Hefty, highly researched and eminently readable."
―Simon Winchester,The Globe and Mail

"All non-scientists (and probably many specialized scientists, too) can learn a great deal from his lucid and amiable explanations."
―

National Post

"Bryson is a terrific stylist. You can't help but enjoy his writing, for its cheer and buoyancy, and for the frequent demonstration of his peculiar, engaging turn of mind."
―Ottawa Citizen

"Wonderfully readable. It is, in the best sense, learned."
―Winnipeg Free Press


From the Trade Paperback edition.

Review
?Stylish [and] stunningly accurate prose. We learn what the material world is like from the smallest quark to the largest galaxy and at all the levels in between . . . brims with strange and amazing facts . . . destined to become a modern classic of science writing.? --The New York Times

?Bryson has made a career writing hilarious travelogues, and in many ways his latest is more of the same, except that this time Bryson hikes through the world of science.? --People

?Bryson is surprisingly precise, brilliantly eccentric and nicely eloquent . . . a gifted storyteller has dared to retell the world?s biggest story.? --Seattle Times

?Hefty, highly researched and eminently readable.? -- Simon Winchester,The Globe and Mail

?All non-scientists (and probably many specialized scientists, too) can learn a great deal from his lucid and amiable explanations.? --National Post

"Bryson is a terrific stylist. You can?t help but enjoy his writing, for its cheer and buoyancy, and for the frequent demonstration of his peculiar, engaging turn of mind.? --Ottawa Citizen

?Wonderfully readable. It is, in the best sense, learned.? --Winnipeg Free Press


From the Trade Paperback edition.

Book Description
One of the world's most beloved and bestselling writers takes his ultimate journey -- into the most intriguing and intractable questions that science seeks to answer.

InA Walk in the Woods, Bill Bryson trekked the Appalachian Trail -- well, most of it. InIn A Sunburned Country, he confronted some of the most lethal wildlife Australia has to offer. Now, in his biggest book, he confronts his greatest challenge: to understand -- and, if possible, answer -- the oldest, biggest questions we have posed about the universe and ourselves. Taking as territory everything from the Big Bang to the rise of civilization, Bryson seeks to understand how we got from there being nothing at all to there being us. To that end, he has attached himself to a host of the world's most advanced (and often obsessed) archaeologists, anthropologists, and mathematicians, travelling to their offices, laboratories, and field camps. He has read (or tried to read) their books, pestered them with questions, apprenticed himself to their powerful minds.A Short History of Nearly Everythingis the record of this quest, and it is a sometimes profound, sometimes funny, and always supremely clear and entertaining adventure in the realms of human knowledge, as only Bill Bryson can render it. Science has never been more involving or entertaining.

From the Back Cover
"Stylish [and] stunningly accurate prose. We learn what the material world is like from the smallest quark to the largest galaxy and at all the levels in between . . . brims with strange and amazing facts . . . destined to become a modern classic of science writing." --The New York Times

"Bryson has made a career writing hilarious travelogues, and in many ways his latest is more of the same, except that this time Bryson hikes through the world of science." --People

"Bryson is surprisingly precise, brilliantly eccentric and nicely eloquent . . . a gifted storyteller has dared to retell the world's biggest story." --Seattle Times

"Hefty, highly researched and eminently readable." -- Simon Winchester,The Globe and Mail

"All non-scientists (and probably many specialized scientists, too) can learn a great deal from his lucid and amiable explanations." --National Post

"Bryson is a terrific stylist. You can't help but enjoy his writing, for its cheer and buoyancy, and for the frequent demonstration of his peculiar, engaging turn of mind." --Ottawa Citizen

"Wonderfully readable. It is, in the best sense, learned." --Winnipeg Free Press


From the Trade Paperback edition.

About the Author
Bill Bryson'sbestselling books includeA Walk in the Woods,I'm a Stranger Here Myself,In A Sunburned Country,Bryson's Dictionary of Troublesome Words ,Bill Bryson's African Diary, andA Short History of Nearly Everything.He lives in Norfolk, England, with his wife and children.

不可抗力条款翻译分析两例

例1. If a Party (the "Affected Party") is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event:

译文1：若不可抗力事件令一方无法履行，或迟延履行，或者阻碍一方履行本协议项下任何义务（该方称“受影响方”）：

译文2：如果一方（“受影响方”）因不可抗力而被妨碍、阻碍或迟延履行其在本协议项下的任何义务：

分析：

1) Force Majeure Event在译文2中被略为“不可抗力“是不妥当的。Force Majeure才是“不可抗力”，Force Majeure Event是“不可抗力事件“，前者泛指，后者更为具体。

2) “某某被妨碍/阻碍/迟延做某事”不符合汉语表达习惯。

3) “无法履行其在本协议项下的义务”显得罗嗦，“无法履行本协议项下的义务”就足够并且不会导致任何歧义——任何译文2希望通过强调“其”来避免的歧义——难道一方还会因己方无法履行对方的义务而以不可抗力事件为由提出抗辩？

4) prevent在这里被翻译成“妨碍“是误译。

Webster's Collegiate Dictionary (11th ed)("Webster") p.984:

prevent: 3 to keep from happening or existing; 4 to hold back: HINDER; STOP。

《现代汉语词典》（1983）：

妨碍（P309）：使事情不能顺利进行；阻碍。

阻碍（1545）：使不能顺利通过或发展。

从英语理解的角度看，prevent具有“阻止”和“妨碍”两方面的含义，在表示“妨碍”的含义时，其意义与hinder一致。本条中hinder与prevent并列，那么prevent就应取"to keep from happening or existing"之意，否则就是be prevented and hindered就是tautology。从汉语的角度检查译文2的选词也可以发现“妨碍”和“阻碍”也是同义词，同时并列使用是同义反复。因此，本条中应当根据"to keep from happening or existing"的理解，将prevent翻译为“阻止”。

5) 译文1的句子结构略显拖沓。

结论：重新选词并重调句子结构，将原文翻译为：“若不可抗力事件阻止、妨碍或延迟一方（“受影响方”）履行本协议项下的任何义务：”

例2. In clause 8, "Force Majeure Event" means an event beyond the reasonable control of the Affected Party, including, without limitation, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, compliance with a law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.

译文1：本第8条所称“不可抗力事件”是指超出受影响方合理控制的事件，包括但不限于：罢工、闭厂、劳动纠纷、天灾、战争、暴乱、民众骚乱、恶意损害、遵守法律或政府命令、规则、规章或指令、事故、工厂或机械瘫痪、火灾、洪水或暴风雨（雪）。

译文2：本第8条中，“不可抗力”指受影响方合理控制之外的事件，包括但不限于罢工、停业、劳资纠纷、自然灾害、战争、暴乱、平民骚乱、蓄意破坏、遵守法律或政府命令、规则、规定或指示、事故、工厂或机器故障、火灾、水灾或风暴。

分析：两个版本的译文中有多处不同， 但此处仅讨论上述加粗的本人认为值得商榷的几处，其余个别差异更多的是不同译者的个人风格差异而已，在只要协同工作中做好协调就可以。

1) lock-out。《元照英美法词典》（2003.5, p864）提供的中文是：闭厂；停工；停业。尽管看起来三者都可以用来翻译lock-out，但我个人对此持保留意见，至少我认为在一定的上下文条件下，对这三个词的选择还是有“优先级”的考虑的。

首先，法律检索得知，我国（港澳台地区除外）现行法律法规中没有采用三个词中的任何一个。其次，网络检索发现，lock-out的中文翻译取“闭厂”的多为权威、正式网站。吾道不孤！比如，大英简明百科知识库对lock-out的解释就说得明白：

閉廠 (1880～1899) lockout (1880～1899)

在勞資糾紛中，雇主把員工關在工作場所以外，或者拒絕雇用員工的策略。1780年代和1790年代.......

另外，湖南省政府门户网站刊登的《美国劳工管理关系法》的中文译本也提到：

（ｃ）如果在一定时期内，局长不能通过调解使有关各方达成协议，他必须促使他们自愿寻找别的办法来解决争议而不采取罢工、闭厂或其它施加压力的办法，……

北京市劳动法学和社会保障法学研究会网站刊登的文章《试述法国对罢工的法律调整及关于我国罢工立法的思考》，其中提到：

不属于合法罢工的行为

……

3 ）占领劳动场所的行为。……二是作为员工对雇主的闭厂或清算的一种反应方式……。

中国劳动和社会保障出版社，《国际劳动统计年鉴（2003）》第七卷的标题就是：“罢工和闭厂(Strikes and lockouts)”；第九章的标题是“罢工和闭厂停工”。这里不仅明确地使用了“闭厂”，更进一步地说明了“闭厂”和“停工”的关系——因闭厂而停工（当然，停工的原因不限于闭厂）。

尽管我国大陆地区现行法律法规中没有使用“闭厂”，我国香港地区的《劳资关系条例》（颁布于1987年，属港英时期法律，目前有效性不知，但从法律翻译角度而言仍有很强的借鉴意义）却有此用法：

（III）着手进行、继续、授权、组织或资助闭厂，或威胁采取此等行动；

相关权威例证还有很多。另外，“停工”和“停业”都是汉语中既有的词汇，他们的词义本就不包括舶来法律概念lock-out，他们只是lock-out可导致的后果之一，从这个逻辑关系上讲，“闭厂”和“双停”非但不可混用，还应当予以区分！综上所述，我认为在不可抗力的条款中，对lock-out的中文翻译当取“闭厂”而决非“双停”。

2) breakdown of plant or machinery。译文2的“工厂或机器故障”显然是错的。首先，Webster, p152:

breakdown: (1) failure to function; (2) failure to progress or have effect

《现汉》p401：

（机械、仪器等）发生的不能顺利运转的情况

可见breakdown描述的是“无法工作/运转”的状态，而“故障”仅仅是不能顺利运转，两者对实际工作的影响程度上的差别显而易见。另外，“工厂故障”也不是汉语的习惯搭配。

3) storm。Webster, p1230:

storm: 1a a heavy fall of rain, snow or hail.

可见，storm“暴”的不仅仅是风，还包括雪和冰雹。如何取舍？根据约定不可抗力条款的目的，不难理解三者都应包括在内。因此，一个英语单词storm在这里应该被翻译为：暴风雨（雪）或雹灾。

看他们如何“出炉“？

今年的奥斯卡奖北京时间今天上午刚刚揭晓，最佳男女主角奖项各归其主。新华网的图片新闻标题是"奥斯卡最佳男、女主角出炉"（点击看图）。"出炉"原指食品从炉膛内取出，可以食用。主要是指时间上的"刚刚"成就，表示新鲜。这个引申意义也被用于其他各类行业。

网络上用"出炉"作关键词搜索，发现词条上千万（点击看图），如"成龙史诗巨作《神话》最新预告片出炉"、"免费办公套装OpenOffice新版火热出炉"、"即时翻译, 个性化管理– Google 工具栏版本4 新鲜出炉 "、"新申花主力阵容基本出炉"等等。这个词的修饰对象可谓五花八门，无所不包。无论是软件、电影、还是足球队阵容等等一概都用"出炉"表示"最新"。这也难怪，媒体为了抢新闻，挣眼球，当然要强调自己的新闻是"最新"、"最热"的，所以"出炉"这个词就成了媒体从业人员的"最爱"。

但是，我认为，一个词的引申用法也是有一定限制的，不能不分青红皂白笼统地使用。如果说，用"出炉"来形容期待已久的电影、软件之类还可以接受的话，用"出炉"来形容活生生的人未免就不太妥当了。毕竟，一个词语的引申意义是建立在它的基本意义之上的。所谓"引申"也就是指"（字、词）由原义产生新义"（《现代汉语词典》1992年版）。活色声香的男女主角如何才能出得了红彤彤的炉膛？如此滥用比喻实在令人哭笑不得。

Adieu, "with regard/respect to" !

Fed up with the abused "with regard/respect to" in legal contexts, I have been trying to find some substitutions for this long and cumbersome word.

I found one, an interesting word, i.e. apropos.

It might be used as an adverb, an adjective or a preposition, with illustrations as follows:

Adv. Your letter came apropos as usual. [timely]
Adj. It is an apropos time to have this matter discussed. [proper]
Your remark is not apropos to our discussion. [relevant]
Apple is not apropos for this season. [seasonable]
Prep. Apropos of the preceding statement, ...[about, with regard to]

Please note that when used as an adjective, it is followed by to or for and as an preposition by "of".

Last but not the leaset, the word is pronounced in two different ways, with the stress on the very first syllable as preferred by British speakers or on the very last like how the French say it. However, in whichever case, the ending "s" is silent. That's the rule of pronunciation for all French words and most of the English words with French ancestors.

This marks a beginning that the disgusting long phrase "with regard/respect to" is fading out of the legal documents that I will deal with.

Adieu, "with regard/respect to." It's the apropos time!

Health goes first

Stressed-out lawyer, 27, dies in late-night fall at Tate Modern

David Brown, James Rossiter, Patrick Foster

As a lawyer at one of the "magic circle" of leading corporate legal firms, Matthew Courtney was expected to work 16 hours a day, seven days a week.

He hoped that his efforts would eventually be rewarded with a partnership – and a £1 million salary.

But weeks after Mr Courtney, 27, and other associate lawyers at Freshfields Bruckhaus Deringer spoke to senior partners about their long hours and stress, he was found dead at Tate Modern, The Times has learnt.

He had gone alone to the art gallery after work on Friday and died instantly after plunging from a stairwell leading to the seventh-floor restaurant at 11.30pm.

The death of the Oxford-educated lawyer, the only child of the World Cup football referee George Courtney, has highlighted concerns about the stress suffered by City workers as bonuses reach record highs.

His father told The Times: "We talked to Matthew 24 hours before his death and he said he was working long hours but there was nothing there to suspect anything untoward.

"We have spoken to Matthew's line manager today, and there might have been an issue with his workload. They had recently taken some of that workload off him. Freshfields were very happy with the quality of his work."

Mr Courtney, of Pimlico, Central London, had been one of only 100 trainee lawyers selected each year to join Freshfields. He qualified last August and was appointed an associate specialising in intellectual property rights at its Fleet Street offices.

As a £ 55,000-a-year junior, he would frequently have been called on to work 16-hour days, seven days a week, for weeks on end to keep up with the firm's relentless flow of multi-billion-pound deals. Junior staff at Freshfields, which employs 2,400 lawyers worldwide, tend to put in this level of work - for up to eight years before they are eligible for partnership and some of the best financial rewards in the City.

A spokeswoman for Freshfields said: "The firm held a minute's silence at 11am on Monday in memory of a friend and a colleague. We are deeply sad and affected."

Mr Courtney studied law on an open scholarship to Christ Church, Oxford, and spent a year at law school in London. He previously attended Durham School, which costs £ 4,000 a term. He spoke French, German and Spanish, was a talented violinist and saxophonist and had appeared at the Edinburgh Fringe while at Oxford. He had also been a member of the National Youth Choir of Great Britain.

His father, who refereed at the 1986 and 1990 World Cups, and mother, Margaret, were visited at their home in Spennymoor, Co Durham, by his manager and colleagues. Mr Courtney's father, who is 65, said: "Matthew set very high goals for himself and achieved great goals. He was a credit to himself and his family."

After qualifying last autumn, the father and son spent a month travelling around California. They also went to The Gambia before Christmas.

Mr Courtney's father said: "He had a good crowd of people around him at Freshfields and enjoyed his time there. He was like all of the associates there – he worked fairly long hours but there was a very good social side.

"The only sad thing is he had so much more to give to his employer, his friends and everybody whose lives he touched. I think he might have gone on to things other than the law. He always wanted to write."

Rodney Thomas, director of marketing at Durham School, who taught Mr Courtney German, said: "Matthew was the epitome of a gifted and talented pupil." Police studied security camera footage from Tate Modern but told Mr Courtney's family that it is inconclusive. A Scotland Yard spokeswoman said that the death was being treated as "unexplained but not suspicious".
 

Market leader

— Freshfields Bruckhaus Deringer is Europe's top corporate law firm and last year worked on 260 deals worth €378.3 billion (£ 254 billion).

— It employs more than 2,400 lawyers in 28 offices around the world.

— Its 450 partners each earned on average £ 830,000 last year. Over the next two years this is expected to rise to more than £ 1 million.

— Freshfields' clients include Tesco and Cinven, a private equity firm weighing up a possible £ 10 billion bid for Sainsbury's.

Source: Mergermarket

“遵守**组织有关&&的规定”

现有两种说法
1) comply with the bylaws of ** with respect to &&. 

2) comply with the provisions of ** with respect to &&. 

前者是把"规定"具像了，稍微罗嗦点，也可以改成: comply with the provisions of the bylaws of ** with respect to &&. 

问题在于 the provisions of the bylaws说得很清楚，是指bylaw的具体条文规定。然而，the provisions of **组织也可以表达同样的含义嘛？ 

我个人认为,provisions of 在表示"**规定"的时候，of后面得跟具体的内容，诸如 chapter, section, article, paragraph,乃至** law/regulation 之类，而不能直接跟组织，表示"**组织
 的规定"――这是受汉语"**单位/组织的**规定"的影响。

 您的看法呢？

“账户”还是“帐户”?

在电脑上输入"zhàng hù"时，不同的汉字输入法输出的词语并不一样。微软拼音输出的是"账户"，全拼输入法输出的是"帐户"，"账"与"帐"发音相同，字形相似，到底应该写做"帐户"还是"账户"，着实令人混淆。

查检商务印书馆1978年版的《现代汉语词典》，在"zhàng"条目下并无"账"字，只有两个"帐"。帐1指"用布、纱、或绸子做成的遮蔽用的东西"。帐2后括号中并列"�ぁ①~"两个异体字，有三个义项，分别为：①关于货币、货物出入的记载；②指帐簿；③债；后面列举了几个词语"帐户"、"帐单"等。可见，"��"与"�~"的两个意思在1978年时统一由"帐"字表达。

但通过网络检索发现，"zhàng hù"的汉字形式并不统一，总的来说， "账户"与"帐户" 都在大范围地使用，以使用后者的略为多一些。另外，"账号"和"帐号"的出现频率之比基本维持在3：7左右。这种混乱的情况在"网下"的现实生活中也不少见。笔者发现银行、邮局的相关凭条上"账户（号）"被写成"帐户（号）"的现象也不少。工商银行个人业务凭证上使用的是"账号"，存款凭证上写的却是"帐号"。建设银行电汇凭证使用的是"账号"。邮局的存取款凭单、开户专用凭单使用的都是"账户"，而邮政汇款单上却又写着"收款人地址（或开户局及帐号）"。

汉字造字法构成的主体是形声，"账"字从"贝"，"帐"字从"巾"，两者的意义是完全不搭界的。《说文解字》曰：帐，张也，从巾，长声。《说文》中有"帐"，而无"账"字，说明"帐"的出现比"账"字早。《说文》对"贝"字的解释是这样的：贝，海介虫也，居陆名�Y，在水名�K，象形，古者货贝而宝，龟周而有泉，至秦废贝行钱，凡贝之属皆从贝。可见，虽然《说文》中没有"账"字，但"账"字以"贝"为义符，表示与"银钱、货物"相关的意义应该是不错的。
"Zhàng户"、" Zhàng号"的基本义分别指"存取钱财的户头"及"存取钱财的户头号码"，都与"银钱、货物"相关。1996年《现代汉语词典》修订本、2002年的增补本与2005年第五版都对1978年版的这一条目作了修改，把兼表"织物"与"银钱进出的记载"两义的"帐"分开，明确了"帐"与"账"的分工：表示"织物"的"Zhàng"则写成"帐"，"Zhàng户"与" Zhàng号"分别写作"账户"与"账号"。
 
http://www.jwc.fudan.edu.cn:8080/yayan/showArticle.php?akey=177

“其他”“其它”是否要分

"其他"本写作"其佗"。因古文字中"它"往往蜕变为"也"，结果，"其佗"成了"其他"。而"它"的本义是蛇，后借用为第三人称代词，"蛇"字另加了"虫"旁，于是，"其他"也可写成"其它"。在古代典籍中，"其他""其它"都可用，两者不仅同音同义，而且用法也一样，既可指人，也可指物。直到"五四"前后，受西方语言的影响，才逐渐出现分工的趋势，"其他"指人，"其它"指物。

然而，事实证明，这种分工并没有多少积极意义，相反增加了学习负担，所以王力先生说"实在没有必要"，他认为"无论指人或指事物，一律可以写作'其他'"。《现代汉语词 典》在解释"其它"时，释文便是"同'其他'"，表现出明显的倾向性。不久前出版的《现代汉语异形词规范词典》，更明确提出"其他""其它"是一组异形词，"其他"包孕"其它"，因此应以"其他"为规范词形。

(摘自《咬文嚼字》2005年第1期)

 

http://www.pep.com.cn/200503/ca648420.htm

hereto与thereto等

按：原文首发复旦bbs法学院版，是针对某同学提问的回帖的回帖。原回帖同学提到here和there的区别主要在时态上。

hereto和thereto与时态无关，而是指代的内容的区别。同一句子可以同时含有hereof和thereof.更何况法律英语中现在时态用得远比其他时态多，这个特点在合同中体现得更为明显。

here/there+of/in/to/from的意思是指of/into/from something.具体something指什么呢？ 这就是here和there的区别。用lz的例子说明：

1. The consultant will deliver to client all information and all copies thereof...when client requests....
这里，应客户要求提供的是什么？
所有的资料以及这些资料的副本。thereof=of all information。句子可以改写成：deliver to client all information and all copies of such information.

2.Party A used to maintain the confidentiality of such information prior to the date hereof.

这里，hereof修饰的是日期，哪个日期呢？本文档的日期。当然，一般这里的"本文档"是指"本合同/协议/契约"等等。

如果这样一句句子：
Party A shall provide to the client all documents and the copies thereof on or before the date hereof.
有了上面的解释就好理解了吧？

可以这样帮助理解：here指"较近的"，there指"较远的"。那么，在一篇文档中，文档本身就是"较近的"，因为什么东西都在它之下，而文档中所指的内容相对于文档就是"较远的"。因此，凡是文档中看到here的，都是指"本文档的"，而there则是根据上下文判断其具体指代，前面说的是documents,那么就是of the documents，如果前面说的是information，那么就使of such information。

当然，简明英语运动提倡法律业者少用、不用这样的古旧词。

to the extent (2)

The possible approaches for the translation of "to the extent" into Chinese in a legal context. Let examples speak:

1. Party A desires to faciliate the Transfer contemplated by the ETA by waiving any rights Party A may have in the Payment and releaseing Party B from any obligations Party B may have to Party A, in relation to the Payment to the extent such rights and obligations exist;

甲方希望放弃其对款项可能享有的任何权利并免除银行就款项可能对甲方负有的任何义务（若该等权利和义务存在）促成股权转让协议所拟转让。

2. to the extent that Party B has any rights, claims, title, and interests in Bank's obligations under the Agreement, Party B, in consideration of the waiver and release contemplated hereunder, has assigned any rights Party B may have in relation to Bank's obligations under the Agreement to Party A to the extent that such obligations exist.

如果乙方对银行在协议下的义务享有任何权利、主张、所有权和利益，鉴于本协议项下拟议的弃权和责任免除，乙方已向甲方转让其就银行在协议下义务可能享有的任何权利（若该等义务存在）。

3. Party A hereby waives any and all right, claims, title, and interests in the Payment and releases Party B from any and all olibgations to Party A in relation to the Payment to the extent such rights, claims, title, interests and obligations exist.

甲方谨此放弃对款项的任何和所有权利、主张、所有权和利益，并免除乙方就款项对甲方负有的任何和所有义务（若该等权利、主张、所有权、利益和义务存在）。

4. To the extent that Party B has any rights, claims, title and interests in Bank's obligations under the Agreement and the Deposit in Party A,...
如果乙方对银行在协议下义务以及存于甲方的存款所享有的任何权利、主张、所有权和利益，

暧昧事宜

汉语注重意合，同一句句子使用不同的句读可以产生完全不同的效果，或者说同一句句子（不加标点）可以让不同的读者在阅读的同时产生完全不同的理解和心理体验。巧妙利用这个特色可以保留暧昧的含义，产生绝妙的文学效果，不少佳句绝对就是最好的例证。显然，这个特点对于法律文本而言，尤其对法律翻译的汉译本而言，在某些情况下决不是好事情。

原句：All matters concerning foreign exchange transactions of the Company shall be dealt with in accordance with the Regulations of the People's Republic of China on Foreign Exchange Control and other relevant laws and regulations in effect.

原译：所有与公司的外汇往来有关之事宜按**法规进行。

"事宜"和"事情"是一个意思，不过更书面一些。显然，"事宜"也和"事"是一个意思。然而，"宜"还可以单独表达"最好如何如何"的含义。那么，问题就来了。根据原译，是不是可以理解成"所有与公司的外汇往来有关的事情最好按照**法规进行"？显然，根据英语原句来判断，这种理解是错误的！原句作的是一般强制 性规定，表达的意思是"所有与公司的外汇往来有关的事情（事宜）[应当]按**法规进行"。

改译：所有与公司的外汇往来有关之事宜均按**法规进行。

汉语中没有"宜均"这个词组，加上这个"均"字不仅强调了"所有"的无例外含义，也把"宜"和下文隔开，省却了那层"暧昧关系"。

让become的翻译“变得通顺”些

合同中常有severability条款，一般处理为"可分割性"。这里可以被分割的是"合同的条款"，因此此等条款具体是指"合同条款的可分割性"。目前工作中一般用的都是较为省略的前者，因为律师和客户们似乎都已经用习惯了。其实，"可分割性 "带有比较浓重的翻译腔，反过来处理成"合同条款（效力）的独立性"似乎更符合一般汉语表达习惯。

这个条款下一般总是含有这样的内容：

If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision of this Agreement or the respective Payment Instruction, as the case may be.

只要稍微有点法律知识，这段话理解起来并不困难。然而，这里的become如何翻译却是一个问题――至少在我见过的文本中一直是一个问题，过往的译者一般都直译为"变得"，整句处理成：

"若本协议某条款在任何司法辖区为不合法、无效或不具可强制执行性 （或者变得不合法、有效或具可强制执行性），本协议其它条款或相关付款指示在该司法辖区内的效力和可强制执行性不受影响。"

这里涉及两个问题。其一，"变得不合法……"符合一般汉语的表达方式么？答案显然是否定的。其二， 鉴于是法律文本并且是翻译件，因此汉语表达就可以不考虑固有的表达方式么？答案更是否定的。

Become在这里和"is"相对，从时间上把合同条款的有效性的不同情况包括了进来。"is"表示现在无效，become则表示"现在有效但可能随着时间的推移而'变得'无效"。既然如此，我的处理方法是"不再"，整句翻译成：

"若本协议某条款在任何司法辖区为不合法、无效或不具可强制执行性（或者不再合法、有效或具可强制执行性），本协议其它条款或相关付 款指示在该司法辖区内的效力和可强制执行性不受影响。"

"to the extent"

"To the extent" is not a strange phrase but its meaning in a legal context is, to a great extent, abstract and difficult to be put into proper Chinese.

 

To be continued...

Coincidences make life

"Coincidences make life"-- that's what I said to my colleagues, the translators with DLA Piper, in the so called farewell E-mail. It was not out of nowhere. It was supported by facts. Every day marks an anniversary for him, her, you, them and me. Anniversaries are many. They could be endings as well as beginnings. Each beginning has its ending. The only difference is that whether you may be patient enough to see that. Patience is a matter both of physiology and  psychology.

We used to fear many things. We do not have that many to fear. That's the process, not progress, we have come through.

It may not be that good a thing we were ever happy to see.

Coincidences, happy or not that make life are but lovable memories or accidents, that is to linger in your mind for quite some time...

To be continued...

Dear Friends,

As you may have known, it is my last working day with DLA Piper and I am starting with a new firm, still as legal translator, my beloved profession, from next Monday on.

I cannot begin to thank adequately those who helped me in my production of varied translation, and my life in the firm, where the friendly atmosphere and ready to help friends helped me quickly adapted to the job.

Thank you Roy for your appreciation and offering me this opportunity to work with an International leading law firm. My work here, as I always say, is much more than work. It is my interest, enjoyment, even entrainment, and an integral part of my life. Thank you for your tolerance when I, a little bit nervous and over excited, made some very silly mistakes in the ship building contract, not long before my joining the firm. Thank you, truly.

I am especially indebted to Michael, Elim, Ian, Joyce, Grace, Matthieu, Bertrand, Jessica, Ming, Chelsea, Kevin, Stephanie, and Luanne who were uniformly generous and kindly and showed the most heroic reserves of patience in answering one simple, endlessly repeated question: "I'm sorry, but can you tell me what that jargon may mean in this context?" And I am thankful to Sarah, Vivien, and Chen Tao. You guys, about my age, active and optimistic, unselfishly contributed to the vitality of the place where I work!

My special thanks go to Henry, my alumni, whose correction always hit the point and greatly enlightened me in some specific terms that I had been somewhat lost for a long while.

I am deeply and variously indebted to Frances, who introduced me to the new firm, welcomed me warmly and made my debut with the firm easy and smooth, and Wella and Lisa, who lend me a hand in the various accounting and financial matters, which, I admit, are totally incomprehensible to me, an ignorant of numbers.

Cassie, Catherine, Tian Tian, Irene, Carols, Caddie, and Jun Xia, thank you all for sharing your contagious laughter that animated the firm every day. For Vivian for particular, millions of thanks for your hard, diligent, efficient, and patient work, without which, my work would have been impossible and reduced to zero, for accounting purposes.

Above all, and as always, my profoundest thanks to all the friends here, new and old. Thank you for the days when I worked with you.

You may find me at my personal email and also at my mobile, which is to survive any change in my life, subject to force majeure events, including and only limited to the collapse of China Mobile.

Keep in touch. I will not be far away, just one metro stop. Do drop me a call, at your convenience, when you pay a visit the Bund Centre. I will miss you, the days with DLA Piper and the lunches at the 7th floor dining hall. It's time to say goodbye, but let the friendship continue... ;)

My best wishes to you and your beloved & Happy New Year!

普陀区的交通

初中和高一的时候曾经写过两篇小论文，讨论如何解决普陀区的交通难问题。其中一篇经修改还获得了区政府的奖励。在文章中，我就提出建设高架道路是一个办法。当时从来没有听说过国外或者其它城市的"高架道路"，这个方案纯属我的想象。没想到后来还成了现实，这个我至今也是有点得意的。

今天在某交通论坛就普陀区的交通问题，又忍不住发表了一些看法，摘录如下：

（一）关于轨道线的设置走向
普陀区是上海的西大堂，上海最著名的最历史悠久的几个拥堵点几乎都在普陀区――沿着中山北路就有沪太路口、岚皋路口、武宁路口、曹杨路口（这个和其他几个相比还算小巫见大巫）、金沙江路口。现在新增的早晚高峰的拥堵路段还包括了曹杨路沿线的各路口，尤其以三汽公司（进场车辆喜欢凑高峰的热闹）、武宁路以及枫桥路、铜川路为甚。

普陀区又是住宅大区，更是和交通拥挤互为因果、恶性循环。

尽管如此，普陀区政府在改善居民出行方面所作的努力显然不能被居民认可！轨道线、公交安排都没有向市里要求到合理的方案。现在的轨道线安排在很大程度上只是"借过"而已。由于忽视了曹杨路，乃至大渡河路以西的大量群众的出行需求，这几条轨道线对于普陀区的公共交通改善将是根本毫无作为的。

（二）关于曹杨路在建轨道线的站名取舍与现有站名之间的冲突

至于站名，曹杨路站今后可以改为"曹杨路中山北路站"，既体现了对原有站名的继承，又更厘清了站点的具体位置。

其实，上海的公交站名（包括公共汽车和轨道交通）都应该以交叉路口名称的方式体现，这样才能真正方便市民出行，避免因具体道路过长或道路曲折或者方言发音相近导致的误解。道路曲折道令人头晕的例子有：华山路、梅岭路（都是弧形，和同一条路可能有两个交叉点）；后者的例子有：场中路与上中路（一个在东北一个在西南，相差十万八千里）、湖南路与河南路。此外，还有纪念路与一二八纪念路这样令人晕菜的"经典"案例。

“节骨眼”

juncture (noun)

1 : joint, connection *2 : a point of time; especially : one made critical by a concurrence of circumstances

Example sentence:

"At this juncture in the editing process," said Philip, "it is important that all facts have been double-checked and sources verified."

Did you know?
"Juncture" has many relatives in English ? and some of them are easy to spot, whereas others are not so obvious. "Juncture" derives from the Latin verb "jungere" ("to join"), which gave us not only "join" and "junction" but also "conjugal" ("relating to marriage") and "junta" ("a group of persons controlling a government"). "Jungere" also has distant etymological connections to "joust," "jugular," "juxtapose," "yoga" and "yoke." The use of "juncture" in English dates back to the 14th century. Originally, the word meant "a place where two or more things are joined," but by the 17th century it could also be used of an important point in time or of a stage in a process or activity.

source: http://www.m-w.com/dictionary/juncture

The Functions of a Comma

Let's see an excerpt from a long contract as follows:

"...for each tax payable with respect to the local Policy, and/or the premium payable under such Policy..."

How do we understand this part correctly? First of all, it may be segmented in two different ways as below:

A. "...for each tax payable with respect to (1) the local Policy , and/or (2) the premium payable under such policy..."; or

B. "... for (1) each tax payable with respect to the local Policy, and/or (2) the premium payable under such policy...". (emphasis and numbers added)

Both look correct; however, they are, quite obviously, conveying different, however slight the difference may be, meanings. In A's case, it talks about one thing, i.e. tax; but in B's case, two issues (tax and premium) are discussed. Grammatically speaking, I hold that B correctly deconstructs the part as quoted.

You may have noticed there is a comma used right after the word "Policy". Without the comma, the quoted part could still be as ambiguous as discussed above. Therefore, I think this comma is specifically deployed to wipe out such possible misunderstanding to make clear which two parts are parallel. Such usage of comma is not rare and is often seen when a long series of subjects are mentioned. Under some extreme circumstances, some writer/drafter may arrange their series like "A, B, C, D, E, F and E" instead of "A, B, C, D, E, F and E." The reasoning is quite simple, they were referring to seven, not six, objects! I prefer such usage. It greatly saves the readers time and energy in conjecturing from something that is sheerly about the writer/drafter's habit or intention and totally beyond conjecture!

My discussion does not end here.

I said at the very beginning that it is an excerpt from a CONTRACT. A contract is, to me, a simply story deliberately and/or habitually made complicated by professionals who subsist on the construction and execution thereof and are called lawyers. (Of course such complication is also what I feed on.) You cannot simply read contracts without the due care for any trap duly laid by the drafter.

Actually, the whole paragraph from which the excerpt comes from reads like this: "Please identify the applicable tax rate, method of calculation, due rate and the payee for each tax payable with respect to the local Policy,and/or the premium payable under such Policy."

Voila! The drafter is talking about tax, and tax ONLY. I do not see any point to add premium into the discussion in this specific paragraph. The use of the comma here is not appropriate and it causes the exact misunderstanding it is purported to circumvent.

Such bifurcated understanding makes my life more interesting but some other's more miserable. My suggestion is: use simple and plain English and use bullets and numbers wisely whenever any dispute or misunderstanding could arise. If only the drafter adopted my strategy in example A, the sentence would be much easier to understand and I would not be refreshed.
The functions of a comma are many, among which I treasure at lease one -- it may save me from coma resulting from such a hypnotic afternoon.