Talk:negligence per se

@Fay Freak You state that there is no German translation. How would a German translator render this into German, then, when writing about US law? We don't care whether German law is the same as US law; we just need a translation for this word, as it would be done by a real legal translator who had to translate the document. Equinox ◑ 11:47, 6 February 2022 (UTC)

@Equinox: It may be substituted by procedural peculiarities, that's why my reference to prima facie proof (in German Anscheinsbeweis) was pertinent. The way Akletos castrated the definition is nonsensical in so far as negligence—comparatively, whether in the US or in Germany—requires violation of a safety rule derived from a statute or otherwise—practically the jurists try to find a statute that was violated as they need something to argue that there has been negligence (as the legislator sets the standards for duties of care, and in so far as the liability norm, in German Haftungsgrundlage, requires at least negligence), and then the negligence must have been the specific cause of the damages (in Germany, Pflichtwidrigkeitszusammenhang), in general, for the claimant to have a claim. So about negligence from the US angle Wikipedia speaks of the first step as finding “the defendant's failure to fulfil a responsibility, recognised by law”. It may of course be thought that the per se part only refers to the distinction of safety rules derived from statutes and derived from elsewhere, but in that case it would be SOP and not a specific doctrine, as which it is described (I have been somewhat skeptical about the idiomaticity though: something can also be per se negligent; it’s only I who has the defined for Wiktionary, after creating this article, what the strange term per se even uses to mean).

The difference here, to the general construction of liability, by that doctrine in US law, is the effective abandonment of even the requirement of negligence by certain circumstances being proven, such that the liability norm is converted into a form of strict liability (i.e. liability for any danger arising from a dangerous, even if allowed, behaviour). This construction, or “per se laws”, do not exist in the legal practice in the Federal Republic of Germany (another difficult term therefore to translate; when it was applied to Denmark in the quote at per se it seemingly was a transferred sense for any statute determining safe behaviour, so there may be a narrow and a loose legal sense) but a similar result is obtained by considering certain violations prima facie proof. (But this explanation is of course only necessary when we posit such a narrow understanding of the terminology. Otherwise, if the sense is not so narrow but looser than I devised, the translation of a “per se law” is Sorgfaltsnorm.)

These kinds of texts of course, as quoted here on negligence per se and at per se, are however one that is generally never translated; one may wonder whether one should formulate a rule for Wiktionary like that terms that only occur in texts that can never be translated shan’t have translation tables, but then again there may be the problem of some languages and legal systems and other languages actually having corresponding concepts so that for other languages one needs to specifically state that a term does not exist (and I don’t just claim that a term does not exist, nobody needs to believe that, so I give reasons why it doesn’t exist). Fay Freak (talk) 12:38, 6 February 2022 (UTC)

Do you like the sound of your voice?| Equinox ◑ 12:32, 21 February 2022 (UTC)

You surely do. May I not? The sound is all not the purpose.

@Equinox: We can’t do all we like, it’s the job of jurists to only find problems, to expose the cancer, which is exactly not blowing hot air and saying nothing. How do you think comparative law papers look like?

It appears that one can’t break down the intricalities of the topic for practical use of translators or laymen or casual readers, there is none and there may be no such “average reader” but it is all beyond his horizon of this general dictionary user, but as this dictionary is not restricted as a general dictionary but rather infinitely specialized one has to expect sections the meanings of which are only fathomable by a specific audience. It is like theoretical mathematics with additional language mediation. It looks terrible and is incomprehensible to most but there is no hint of it being wrong: wouldn’t go into those areas of Wikipedia and remove everything too hard for you. Why remove things that are objectively correct and comprehensible but not to you? The translation section is good enough if only the German jurist comprehends the analogy.

And it is very easy to find legal terminology that depends on other legal terminology specific to a legal system such that the readership not previously acquainted is bowled out by the cancerous growth of new vocabulary in its most parsimonious description (minimal enough not to omit legal requirements); indeed if you go down the law rabbithole it is learning a new language, as with certain fashionable programming languages each inventing new terminology but with a far greater slew of tradition to be known, and you see which complications arise if you do this with multiple natural languages. It is expected, and it is right, but it is avoided as man is not paid enough to make such dictionaries regularly, in comparison to the educational costs of learning these multiple languages, and then if it is imparted for free some strangers on the internet rubbish it so everything is as square as before. Fay Freak (talk) 16:46, 21 February 2022 (UTC)

Speaking 500 words to express 2 words isn't cool, and doesn't make you look clever. Also you're still wrong. Equinox ◑ 21:15, 21 February 2022 (UTC)

Equinox, I value your time much, and I have not spoken 500 words to express two words but whole structures and detailed information. That you let yourself be lured by them into a rabbithole that you never wanted to stay in because it is interesting but also goes too far is another cup of tea. Your expectation of two words is still wrong. This is no topic to ELI5. Fay Freak (talk) 21:35, 21 February 2022 (UTC)

As Equinox says, the verbiage about § 823 II BGB is irrelevant and misunderstands what is at issue, which is not whether or how a German court could apply the concept, but how the term gets translated. To that question, the answer is that it doesn't seem to be talked about much, but when it is, the plain description google books:"Fahrlässigkeit per se" is used, including "Fahrlässigkeit+per+se"&dq="Fahrlässigkeit+per+se" in books and websites covering the US law concept. - -sche (discuss) 17:18, 21 February 2022 (UTC)

Other entries where this misunderstanding of the purpose of a translations table has been applied, e.g. frustration and tortious interference, also need to be revised. The Finnish translation of the latter shows a better way to concisely state that the concept is absent from the nation's laws, while a capacity to discuss it when discussing other nations' laws is not absent from speakers of the language. - -sche (discuss) 17:29, 21 February 2022 (UTC)

@-sche: There is this issue of translations of idioms and jokes in movies with either something completely different. As this is not the thin subtitle strip of a motion picture, the multiple possibilities can be shown: one way just provides a literal translation which isn’t even comprehensible nor idiomatic in the target language but allows for easier reconstruction of the source term, another is a choice between options in the target language (options which are all told in frustration, to give the translator the input that he likely seeks). Sometimes one also takes both when reporting about court cases in abroad. Keep the untranslated foreign term and give a definition or what it would most closely correspond to in the native law. Like some law professor I heard talking about US criminal procedural law being like: ”guilty plea das wir übersetzen können als (“which we can translate as”) Geständnis” (because in Germany it is not a plea). This is the capacity to discuss other nations’ laws. Sometimes a translation is explicit about its being a translation. There was never a promise that translations in translation tables could be applied randomly or without reformulation. And perhaps only law performs the worst here. Fay Freak (talk) 20:51, 21 February 2022 (UTC)