Tag Archives: Latin

Bona Fides

Academic Latin Pronunciation: Bone-a Fee-deys

Legal Latin Pronunciation: Bone-a Fi-d

 

The New College Latin and English Dictionary says….

* Bon-us, -a, -um; adi good (morality); sound, valid, well-founded (arguments)

* Fid-es, -ei; f Trust, reliance, confidence; trustworthiness, conscientiousness, honest; assurance; word, word of honor; protection, guarantee; false conduct; confirmation, proof (in this case: ablative case)

 

Phrases

* Bona fidei: In good faith

* Bona fides (or ex bona fides): In good faith; really, genuinely

 

Ergo…

 

Bona Fides: “In” (ablative) “sound / valid” “trust / word of honor / guarantee”

 

Used in Latin… the term has many categories. The New College Dictionary has a plethora of phrases with “fidem” and a complimentary verb that mean arguably the same thing, in many situations. However, just like any language that has many, many translations for one simple word, the significance of the world changes with the nuance. With “bona”, the term is related to “good” in a moral or trustworthy sense.

 

For legal latin… “bona fides” it refers to legal instruments or promises that have been made “without fraud or deceit” (Black’s Law Dictionary). In this way, the legal community is defining something in the inverse; a “bona fide” document is not “an agreement made in good faith”, but “an agreement that was not made through fraudulent actions or deception”. It may seem like splitting hairs, but for a linguist, there is meaning to the definition.

Alternatively, Black’s Law Dictionary defines the english term “good faith” (used as a noun) as: “A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.” So the definition is given depth and meaning based on the circumstance. (Very much like the latin usage!) This opens the door to relevant “Good Faith” doctrines, including such examples as “Good Faith Bargaining” for Labor Law, “Good Faith Exception” for Criminal Law, “Good Faith Improver” for property law, and even “Good Faith Effort” for government compliance with equal opportunity employment acts.

 

So what does this all mean? 

For most people, “bonafide” is a term that we use in common discourse to mean something is “the real thing” as opposed to a fake. In the latin, it remains a vastly open ended notation of intent by the actor or the trustworthiness of a thing. With modern legal practice, the term of art we know as “bona fides” is many things, depending on the situation: a standard for review, a provable mental state for litigation, a defense to negligence, or an indicator for intent – largely based on an intangible sense of “good”, honesty, and morality. It has taken an intangible notion similar to a “faith in the goodness of humanity” and created a legal doctrine whereby it can be used to describe the trustworthiness of a document or person’s statement or actions.

As a side note, it also seems to be something that would have been key for a community of people who distrusted written contracts as opposed to oral ones. In an oral culture, you shook on an agreement and felt you could trust a person to carry out their end of the bargain. When those terms got put to paper, the humanity was arguably taken out of the equation; “either you perform as we have in the written negotiation, or I’ll sue you for damages and reparation”. Having a “Good Faith” doctrine, then, seems to be our greatest attempt at bringing back in, or at least formally acknowledging, the trust that is implicit in modern legal practice.

Because to be honest, very few people are able to blindly trust another person, especially someone with dissimilar interests. Doing business through lawyers doesn’t help, either. A lawyer is there to tell you your rights and to advocate for your position, some times to the de-valuation of your opponents. However, when there remains a factor of trust and honesty in the process, at least you know you aren’t getting screwed. Well, at least not intentionally.

And I suppose that’s all that really matters.

 

Pax,

Vestra Magistra, Esq.

QUID PRO QUO

Academic Latin Pronunciation: Quid Pro Quo

Legal Latin Pronunciation: Quid Pro Quo

 

The New College Latin and English Dictionary says….

* Quidam, quaedem, quiddam; pronoun a certain one, a certain person, or a certain thing

* Pro; adj “esse pro” (+ Ablative) to be as good as, be the equivalent of

* Quo; that, in order that (Ablative form of Quid)

 

Phrases

* Pro eo quod: in view of the fact that

 

Ergo…

 

Quid Pro Quo: “Something specific for a comparable something else specific”

 

Quid Grammar: Indefinite Pronoun, is more definite that aliquis (“someone”, “somebody”, “some”),

 

Pro Grammar: Preposition, governing the ablative. (The ablative is the objective case for a nouns in Latin. The ablative comes in three flavors: the “from”-case (Ablative), “with”-case (Instrumental), or “where”-case (Locative) ).

 

Quo Grammar: “Quo” is the ablative case of the noun quid, used when the purpose contains a comparative or a comparative idea.

 

Combined, the phrase turns into Quid (“a specific something”) Pro (“for” + ablative) Quo (“a specific something” – ablative case, denoting equivalency), or as it’s easier to read: “something for something comparable”.

 

So that’s what the grammar means, but what’s the significance? It’s probably one of the more common uses of latin for business and law… but do they still match up to what the latin signifies?

 

From the Century Dictionary : –noun

1. Something given for something else; a tit for tat; in law, an equivalent; a thing given or offered in exchange for or in consideration of another; the mutual consideration and performance of either party as toward the other in a contract.

 

Wordsmith Words : Usage

“As is now known, `back-channel’ negotiations achieved a quid pro quo. In return for Russian offensive missiles not being placed in Cuba, President Kennedy would remove Jupiter missiles from Turkey and promise not to topple Fidel Castro’s communist regime militarily.” ― Ronald H Carpenter, When the Right Words Counted, Naval History (Annapolis, Maryland), Oct 2001.

 

Black’s Law Dictionary, Deluxe Eighth Edition (p.1282)

[Latin “something for something”] An action or thing that is exchanged for another action r think of more or less eqal value; a substitute . See Reciprocity (2). Cf. Consideration. [Cases: Contracts *50. C.J.S. Contracts 87.]

 

So unlike the rest of my posts… Yes! The latin has actually managed to keep the same meaning. For me, the nuance lies in the fact that there are a very impressive number of types of ablatives, but that doesn’t matter for the one phrase. Perhaps the more impressive part of all of the research for this particular phrase is the fact that I’m now stuck in Black’s Law Dictionary in the “Q” section realizing how many phrases I could potentially do this type of Blog post for. It’s rather daunting…

 

Fortunately for y’all, I’ll just leave it to the ones I actually ran across in school and practice!

 

Pax,

Vestra Magistra, Esq.

RES IPSA LOQUITUR

Academic Latin Pronunciation: Reys Eep-sah Low-quee-tur

Legal Latin Pronunciation: Rays Eep-seh Low-quit-tour

The New College Latin and English Dictionary says….

• res, rei, or rei: f Thing; matter, affair; object; circumstance; event, occurrence; property, possessions, wealth; estate, effects;
• ips-a, -ius: adj (f) self, very, just, mere, precisely; in person; by herself, alone; of her own accord; she, herself
• loqor, loqui, locutus sum: tr To say; to talk of, speak about; to tell, tell of, mention; (fig) to declare, show, indicate (here: present indicative)

Phrases

• “res ipsa”: in fact, in reality

Ergo…

Res Ipsa Loquitur: “The thing” “speaks” (for) “itself”

During my first year of law school, I thought this was one of the best use of latin. Not because those who first used the phrase were referring to any important political oration from ancient Rome, but because the latin expressed the meaning of the word so much better than english ever would. As I see it, given the rampant personification of inanimate things and animals in our culture, getting across the idea that a situation speaks for itself so boldly required something different. Because honestly, jaw dropping situations only happen so often – and typically, they leave us speechless. (So why not babble some latin, while you’re at it?)

Getting to the point, though… In a discussion about legal Negligence that can have a huge amount of nuance (who has what responsibility and what are/were reasonable actions taken because of that responsibility (Duty of Care and Breach, for those following along)) – this was the easy situation. Given the facts, there is just no possible way that there wasn’t some sort of negligence, even if you couldn’t put your finger on who did it. (Don’t you just love double negatives?)

Or as I like to say – this is the “Train Wreck” doctrine.

Specifically, its the train wreck at Montparnasse in 1895 Paris, France…

This image has forever been emblazoned in my mind as the true definition of “res ipsa loquitur“. Just ask yourself…

“How did that happen?”

If your answer is: “Someone, somewhere, with power to avoid this situation did something they weren’t supposed to.” – then you’ve gotten it right.

For the law, the power of this doctrine comes from the fact that there is no direct evidence of how anyone accused of being negligent behaved. The negligence is inferred from the fact that there was an accident at all. The kicker for pinning a defendant with the blame is whether they had “exclusive control” over the “instrumentality” that cause the accident. (Restatement  (Second) of Torts, § 328D)

While not originally applied to medical malpractice cases, now our big case on point for it is Gray v. Wright  where a surgical team was found to be negligent. Why? Because back in 1957, a seven-inch hemostat was removed from a woman six years after her gall bladder surgery. As for evidence of negligence… the only way for the instrument to have gotten in there was for the surgical team to have left it. She didn’t have to prove that any one particular person was negligent, because the fact that it’s there at all “speaks for itself”.

I could go on and on about other, more modern forms of the doctrine, but I’m here to talk about the language! So where was the ancient use of the phrase? In an oration entitledPro Milone by Marcus Tullius Cicero, 52 BC.

A very, very brief sum of the situation has Cicero attempting a defense for his friend Milo against murder charges by saying that Milo acted out of self defense. As part of the oration, Cicero sets up the facts that Milo killed Clodius out of self defense. Milo was traveling on official business, heavily encumbered in regalia, with his family and house (“harmless slave”, etc.); Clodius had been missing from the political scene earlier that day… so when the two met (Clodius traveling alone, on a horse), Milo’s actions were in line with self-defense, rather than murder because under the circumstances, it was not logical for him to act in such a manner unless such a manner was necessitated by circumstance. (The need to kill in self defense speaks to the situation where one is ambushed, rather than where one is out to murder.)

For those of you who want the full scoop, here’s the wiki-link. (I’m actually quite impressed by Wiki’s editors’ ability to get so much decent info about ancient topics, but then again, classicists have been at this for over 2k years and its not like the story is open to interpretation anymore.) FWIW – Another great resource for latin translations (rather than summaries of stories) is the Perseus Collections  through Tufts University.

So what does all of this mean for the prima facie v. res ipsa loquitur debate?

Prima Facie – “At first sight”

A noun phrase used to describe evidence for a case that has all of the components of proving the case required by law. (Eg: a Copyright registration in a case of infringement.) For common law, unless rebutted, the evidence would be enough to prove your case, or at least a fact in your case.

Res Ipsa Loquitur – “The thing speaks for itself”

A noun phrase used to describe evidence for a case of negligence where the situation itself provides the inference of guilt. Someone with responsibility (Duty of Care) and exclusive control over the situation MUST have done something wrong (Breach) because common sense says that the accident/occurrence could not have happened otherwise. Trains don’t go through the second story of a building on their own, nor do medical instruments grow organically in little old ladies.

The distinction, then, is in the thing being self evident. It is the facts that make it so that the situation is self evident or the situation that necessitates some facts had to have happened.

Prima facie – FACTS Res ipsa loquitor – THING

And now that I’ve shown the world that the best way to make this distinction can be found in the latin itself, which takes abstract legal concepts and boils them down into words from a beautiful language – my job is done!

Okay class – homework for next time is reading chapters 4-6 of Cicero’s De Legibus . Get reading!

Pax,

Vestra Magistra, Esq.

[Also – extra credit for the student who can tell me what “Quid pro Quo” means, and not just the translation. It’s probably one of the more common uses of latin for business and law… and as our friend Inigo Montoya says… “I do not think it means what you think it means.”]

PRIMA FACIE

Academic Latin Pronunciation: Pree-mah fa-key-eh

Legal Latin Pronunciation: Pry-mah fey-sha

(And yes, I took a linguistics class, but it’s much easier to get my point across with more literal “sounding” letters.)

The New College Latin and English Dictionary says….

• prima, -orum: npl first part, beginning; first principles or elements
• faci-es, -ei: f face; look, facial expression; appearance; make, form, shape, outline; nature, character; pretense, pretext;

 

Ergo…

 

Prima facie can mean a number of things, but at the heart of it, it’s pretty simple. Even wikipedia denotes prima facie as meaning “at first sight”. That’s arguably how the term was used, but more as a colloquialism than a literal translation. Literally, you could use the term when speaking about the first half of a double take, but that’s not what we’re going for.

 

So at the heart of the language, there are two very distinct concepts being combined to make the legal term of art. Legal, as opposed to the “we want to use latin and sound smart” use. (You know, ’cause Omnis sanus melior in latina.)

 

In the case of legal latin – “Prima” refers to the primary or first elements presented in a case. “Facies” is better understood as “outline” “nature” or “character” of the case itself. So the term of art, therefore, is used to denote the first elements which outline the nature of the case. And if that is all that you need for an explanation of the case itself, then the case is made. Having “prima facie” evidence (adjective form) means that you have all of the elements needed to present a case.

 

In sum: A copyright registration is prima facie evidence for a dispute over ownership of a copyright – the fact that you have a registration means that you provided all evidence to the appropriate authority to claim the piece as yours, so you are presumed to have all evidence necessary to win your dispute. Therefore, rebutting this kind of evidence is very hard to do, and requires much more work and can be more expensive. (Read: If someone else steals and improperly registers your material, there’s going to be a law suit involved to get it corrected. And they’re going to have better evidence than you. So register early and often, folks!)

 

Dicta: This phrase “prima facie” is, of course, distinguished from the concept of “Res Ipsa Loquitor” which relates to a similar concept for the evidence of negligence, but that’s a whole other post.)

 

Now was that so hard, class?

Any questions?

Okay, homework is reading chapters 1-3 of Cicero’s De Legibus  for next time.

 

Pax,

Vestra Magistra, Esq.

So in my first post I explained that I graduated from The University of Iowa with a Latin Minor and an Ancient Civilization’s Minor. In addition to being ticked off about not being grandfathered in to the new requirements for the Latin B.A. two weeks before I graduated… It also led to other, unexpected rage.

While a Latin student I studied almost the full spectrum of the latin language: classical latin (gold and silver), medieval latin, and even some church latin “for fun”. (If you want to know more about these crazy differences, check out the Classical Latin  wiki site.) What I didn’t study, however, was legal latin. Why? Because apparently, there is an even lower abomination of a beautiful language. Lower than church latin.

[Full Disclosure: My opinion is based on the realization that both medieval and church latin are best described as a modern latin student attempting to write a doctoral thesis after only one year of introductory latin. All of the grammar rules go to shit and they make up both new rules and vocabulary at a whim to cover it up. UGH!]

Thus unprepared for the reality which was to be the use of latin in the legal community, one can imagine how taken aback I was by people’s inability to do two things: (1) understand it and (2) pronounce it. Heavy on the second one.

For the first problem, it’s important to note that latin in the legal community is used to condense a complex legal notion into a means by which to express it in a few words (aka: “a term of art”). In this way, the profession can use the term as something more than their simple translation.

For me, these words gave me the opportunity to have fun translating them when I found them in the text, and then delve into the reason why they were used that way. (But I also translate every bit of latin I run across. Especially the latin on the Massachusetts state seal while I was getting sworn into the bar last year.) For other people, the latin phrases were just a pain in the neck.THey memorized how the letters went together, what they meant, and then moved on.

The second problem, pronunciation, was more of a struggle. Way back in latin class 101, I was told that modern society has very little actual idea what latin sounded like when it was utilized as a language. There were a few things that we knew (“c” is a hard “k” sound), but given the time, various vowel shifts, and other linguistic nightmares – there was no “proper” way to pronounce things. Despite this knowledge, there are accepted ways to pronounce latin in modern times. This is what I learned, and I very highly enjoyed reading latin aloud during class. (I also always wanted to take a conversational latin class and anachronistically talk about computers and the internet… but that’s a whole other ball of wax.)

When I took medieval latin, things began to change. I was told that with the fall of the Roman empire, the pronunciation of latin also began to change. Okay, that makes sense. The romance languages were blossoming from their originating dialects of latin, and there was nothing wrong with that. In the same vein, Church latin also had different pronunciations, which was only to be expected.

What I didn’t expect, though I probably should have, was what happened thousands of years later as the legal community took up the reigns of the language. Talk about nails on a chalkboard…

So by way of introduction to this wonderful series of posts I’ll be making as the blog goes further, let me leave you with my first and most favorite of all of my encounters in law school.

I believe it was in Contracts class with the glorious Professor Andrew Beckerman-Rodau. We were talking about some point regarding having all of the evidence needed to show your case, a concept which in the legal community calls “Prima Facie “. (Which you might recognize from last week’s post.) So when I, being a newly graduated classicist, made my comment about the term I pronounced the way I had been taught. When I finished, though, my ENTIRE CLASS was turning around looking at me like I had two heads.

Then I realized what I had done. I had said “pree-mah fah-key-a”.

Everyone else, who had learned that the letters “prima facie” meant something as a term of art – pronounced the same thing “pry-mah fay-sha”.

*sigh*

And that’s when I knew what I had to do. Even if it got sold just as a legal humor book, bought by friends of lawyers who thought it was cute, I had to write a book that was entirely based upon legal latin – where the terms came from, what they meant to the Romans, what they meant to the courts that first used them, what they meant today, and most of all how to pronounce them in the widely accepted modern latin.

I had to do it. It was my duty as a classically trained latin scholar to see this done.

So here I begin, one phrase at a time, on a blog I started one year after graduating law school. These are what will eventually become my Must Read book for attorneys on Legal Latin.

I hope you enjoy!

Classicly Trained, Esq.

Next Week: the dreaded “Prima Facie”, exposed!

[EDIT TO ADD: Hahaha. I just realized that this entire post-series will be crawled by google, which will in turn make them show up when first year law students search the internet to remember what the hell the terms mean. Score!]

 

(c) Nicole L. M. Jurkowski, 2010