What Translators Can Learn from the “Untranslatability” of Punitive Damages

Punitive damages (a.k.a. exemplary, vindictive or imaginary damages) is a problem term in some, but not all, language combinations. This is so because, legally speaking, punitive damages don’t exist in every country.

In my language combination (EN-ES), the concept of punitive damages exists linguistically, but not legally, throughout the Spanish speaking world. So, for example, while punitive damages have long been awarded by the Courts in Mexico, Venezuela, and Puerto Rico, it wasn’t until the new Civil Code was sanctioned in 2015 that punitive damages were explicitly addressed in Argentine law. So, for a long time, those of us who practice law in Argentina had a word for something that existed conceptually, but not legally. We talked about it. We theorized about it. But no court could award punitive damages because, technically speaking, they didn’t really “exist” under Argentine law.

Recently a student in my Comparative Law course contacted me with a very specific problem. She was translating a contract from English into French and came across the term punitive damages in a contract clause. The problem? French law does not yet contemplate punitive damages.

I. What are punitive damages?

According to Black’s Law, punitive or exemplary damages are: “damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong, or else to punish the defendant for his evil behavior or to make an example of him, for which reason they are also called ‘punitive’ or ‘punitory’ damages or ‘vindictive’ damages, and (vulgarly) ‘smart-money’.”

Basically, punitive damages are awarded when the defendant’s conduct was so outrageous that the court wants to both punish the defendant and deter him and others from ever doing anything even remotely similar in the future (Polinsky and Shavell 1998). Their deterrent effect is the reason why they are sometimes called exemplary damages, the theory being that if you make an example out of a defendant, others will think twice before engaging in similar conduct.

II. What kind of conduct is reprehensible enough for punitive damages?

Ford Motor Company’s conduct in the 1970s is an excellent example.

In 1978, when driver Lily Gray and passenger Richard Grimshaw were circulating down a street in Orange County, California, in Ms. Gray’s Ford Pinto, a rear-end impact caused the car to catch on fire. Ms. Gray died and Mr. Grimshaw suffered severe injuries.

A lawsuit was filed against Ford Motor Company (Grimshaw v. Ford Motor Co.) and the evidence in the case revealed that Ford knew that the car had a design flaw that increased the chances of loss of consumer life and, “despite management’s knowledge that the Pinto’s fuel system could be made safe at a cost of but $4 to $8 per car, it decided to defer corrective measures to save money and enhance profits.” Basically, Ford decided it was cheaper to risk it than fix it, even though what they were putting at risk were human lives.

In light of that evidence, the jury awarded $125 million in punitive damages. Ford appealed. The Appellate Court affirmed the judgement of the Trial Court and held that: “[…] the conduct of Ford’s management was reprehensible in the extreme. It exhibited a conscious and callous disregard of public safety in order to maximize corporate profits. […] Ford’s tortious conduct endangered the lives of thousands of Pinto purchasers. Weighed against the factor of reprehensibility, the punitive damage award as reduced by the trial judge was not excessive.”  (Grimshaw v. Ford Motor Company, California Court of Appeals, Fourth District, 1981 174 Cal. Rptr. 348)

III. Why don’t punitive damages exist in every legal system?

When it comes to punitive civil sanctions, the rule of thumb in many civil law countries is (or was until recently) that damages must be compensatory only, meaning that damages must compensate the injured party for the injury sustained, and nothing more (Pizarro 2000) (Gallo 1996 ) (Carval 1995). In fact, in some civil law countries, legal scholars go as far as to sustain that any compensation beyond the injury sustained constitutes unjust enrichment on the plaintiff’s part (Trigo Represas and López Mesa 2004). The latter criteria reflect the dominant position in France (Viney 1988 ), which if you’ll remember, was my student’s target country.

According to Alexandre Bailly and Xavier Haranger: “Punitive damages are currently prohibited under French law, as they are contrary to the principle of full compensation of the damage limited solely to the loss suffered, in order for the affected party to be restored to the position it would have been in if the damage had not occurred but also to prevent enrichment of the affected party and any penalty against the wrongdoer in excess of the actual loss.”

The authors further sustain that: “Currently, the French equivalent of punitive damages is “amende civile”, or civil fine. This civil fine, provided for in Article 32-1 of the French Civil Procedure Code, applies in case of abusive or dilatory proceedings. It is not much of a deterrent since its maximum amount is €10,000 and it is seldom applied. In addition, when judges impose such fines, they set them at limited amounts. […] Finally, punitive damages, as found in other legal systems, starting with common law, are currently recognized in French law only in the context of the enforcement of a foreign judgment that ordered punitive damages.” (Haranger and Bailly 2018)

Clearly, amende civile will not capture the concept of punitive damages as it’s understood in the source text. So, what is a translator to do in such cases?

 IV. Thinking outside the box

French is not one of my working languages, but it occurred to me when trying to help out my student that, given the particular context of her text, she was going to need to use a linguistic equivalent for punitive damages, even if punitive damages are not recognized under French law as in other legal systems. Now the question was what term(s) to use to reflect that.

I did some digging and found several academic papers and court decisions addressing the matter of punitive damages in French law; and one particular 2010 decision from the Cour de cassation stood out in which the Court had used the term dommages-intérêts punitifs to refer to punitive damages in the common law sense of the term (Arrêt n° 1090 du 1 décembre 2010 (09-13.303) - Cour de cassation - Première chambre civile).

Because I don’t work into or out of French, I’m in no position to judge whether or not dommages-intérêts punitifs is correct in French. However, this problem term in my Comparative Law student’s translation led to a major teaching moment: legal translation research will often involve thinking outside the box. When dictionaries don’t have what we’re looking for, when the law is silent, when there is no legal equivalence, we can always resort to the works of legal scholars and courts for reference.

Legal thinkers, both at the academic and judicial level, often find themselves analyzing foreign laws and legal concepts. And, in doing so, will often solve linguistic problems for us in their need to compare different legal systems to theirs. So, when translating, think like a lawyer. Read what lawyers read. And lawyers, I can assure you, read plenty of academic writings and case law. And, while you’re at it, why not build up your legal glossaries as you read?

Works Cited

Carval, Suzanne. 1995. La responsabilité civile dans sa fonction de peine privée. Paris: LGDJ.

Gallo, Paolo. 1996 . Pene private e responsabilitá civile. Milan: Giuffrè.

Haranger, Xavier, and Alexandre Bailly. 2018. Morgan Lewis. November 5. Accessed April 28, 2019. https://www.morganlewis.com/pubs/coming-soon-punitive-damages-the-french-way.

Pizarro, Ramón D. 2000. "Daños Punitivos." In Derecho de Daños. Homenaje al Profesor Doctor Félix A. Trigo Represas, by Alterini Jorge H and et. al., 292. Buenos Aires: La Rocca.

Polinsky, Mitchell A, and Steven Shavell. 1998. "Punitive Damages: An Economic Analysis." Harvard Law Review 869-962.

Trigo Represas, Félix A., and Marcelo López Mesa. 2004. Tratado de la responsabilidad civil. Buenos Aires: La Ley.

Viney, Geneviève. 1988 . "La responsabilité: effets." In Traité de droit civi, by Jacques Ghestin, 8. Paris: LGDJ.

 

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