Glossary entry (derived from question below)
May 21, 2020 10:13
4 yrs ago
26 viewers *
Polish term
Poland
gwarant
Polish to English
Law/Patents
Law (general)
Criminal Law
Co jeszcze ważniejsze w przypadku przestępstw skutkowych, pojawia się dodatkowy warunek odpowiedzialności, wskazany w art. 2 k.k.: „Odpowiedzialności karnej za przestępstwo skutkowe popełnione przez zaniechanie podlega ten tylko na kim ciążył prawny, szczególny obowiązek zapobiegnięcia skutkowi”. Osobę taką określą się w doktrynie prawa karnego mianem gwaranta.
Specifically, it's not clear to me from this description whether "guarantor" is the appropriate English word here.
From a text of considerations on criminal law and morality.
Specifically, it's not clear to me from this description whether "guarantor" is the appropriate English word here.
From a text of considerations on criminal law and morality.
Proposed translations
(English)
| 3 +5 | guarantor |
Leszek Pietrucha
|
| 2 +1 | party with the legal duty to act |
Frank Szmulowicz, Ph. D.
|
| 3 | person with a duty of care // defendant with a duty to intervene |
Michael Grabczan-Grabowski
|
Proposed translations
+5
1 hr
Leszek Pietrucha
Poland
Poland
Native in Polish
Specializes in field
Poland
PL & IRL solicitor, ENG sworn translator
Native in: Polish 
Works in: English to Polish, Polish to English
Related KudoZ points
:
28
Selected
guarantor
Należy mieć na uwadze, że jest to termin specyficzny dla obcego (dla odbiorcy w języku angielskim) systemu prawnego wobec czego odbiorca taki może spodziewać się, że termin ten nie będzie mu się normalnie kojarzył z danym obszarem. Znalazłem w Google opracowanie dot. odpowiedzialności w niemieckim prawie karnym, w którym autor używa terminu guarantor i odwołuje się do guarantor principle właśnie w podobnym kontekście tj. odpowiedzialności karnej. Link poniżej.
Peer comment(s):
| agree |
Frank Szmulowicz, Ph. D.
: I found another confirmation of your answer./Wszystko zależy od czytelnika.
19 mins
|
|
Dziękuję. No to mamy pewność
|
|
| agree |
elutek
36 mins
|
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Dziękuję
|
|
| agree |
Michael Grabczan-Grabowski
: As per the discussion, you could use this option, as it is contextually defined, and if the client agrees. Otherwise, I'd opt for the more descriptive approach.
1 day 5 hrs
|
| agree |
mike23
1 day 21 hrs
|
| agree |
Magdalena Kardys
: jeszcze jeden link w tym temacie: https://books.google.pl/books?id=OBk5YFVHL-0C&pg=PA452&lpg=P...
2 days 6 hrs
|
4 KudoZ points awarded for this answer.
Comment: "Many thanks for your assistance."
+1
1 hr
Frank Szmulowicz, Ph. D.
United States
United States
Native in Polish
&
English
Works in field
United States
On time, on target, on budget.
Native in: English , Polish
Works in: Polish to English, English to Polish, Russian to Polish, and 1 more.
Related KudoZ points
:
1246
party with the legal duty to act
Here is a descriptive definition based on the principle of omission.
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Failure to act can result in criminal liability when there is a duty to act. At common law, a duty to act arises under the three circumstances discussed below. Even when there is a duty to act, the offender must still possess the requisite mens rea to be criminally liable.
1) A person has a duty to act when he or she has a special relationship with the victim (a “status relationship”), such as a parent to a minor child, married couples to one another, and employer to employee.
2) A duty to act can also be created by an implied or express contract—for example, lifeguards and doctors may have a contractual duty to provide care.
3) A duty to act can also result by wrongfully creating a risk of harm. For example, a person who is driving recklessly and causes an accident has a duty to help anyone injured by his actions. Although there is less case law about accidental, non-culpable risk creation and justifiable risk creation, a few courts have suggested that a duty to aid arises in these situations as well. For example, if Fred shoots Mark in self-defense, Fred may still owe a duty to obtain medical care for Mark. A duty to act also results from voluntary assistance. One who begins to provide aid has a duty to continue to provide aid, unless the victim would be no worse off after the omission as before aid was provided.
Finally, a duty to aid can be imposed by statute. So-called “Good Samaritan Laws” require bystanders with knowledge of a victim’s need to provide reasonable assistance to the victim. The same arguments in favor of the general rule against omissions liability can be made against this type of statute.
https://www.inazu-crimlaw.com/8-omissions
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What Is a Duty to Act?
A duty to act is a legal duty requiring a party to take necessary action to prevent harm to another person or to the general public. In personal injury law, an individual may be held to a standard of reasonable care to prevent injury or harm.
A duty to act is often imposed under a statute or from a contractual relationship. Examples include:
A doctor’s duty to care for patients
An owners’ duty to protect those who are invited upon his land
A restaurateur’s duty to provide proper fire escapes for patrons
Parent’s duty to act affirmatively to safeguard his children and safeguard third persons from his children
https://www.legalmatch.com/law-library/article/duty-to-act.h...
cccccccccc
Failure to act can result in criminal liability when there is a duty to act. At common law, a duty to act arises under the three circumstances discussed below. Even when there is a duty to act, the offender must still possess the requisite mens rea to be criminally liable.
1) A person has a duty to act when he or she has a special relationship with the victim (a “status relationship”), such as a parent to a minor child, married couples to one another, and employer to employee.
2) A duty to act can also be created by an implied or express contract—for example, lifeguards and doctors may have a contractual duty to provide care.
3) A duty to act can also result by wrongfully creating a risk of harm. For example, a person who is driving recklessly and causes an accident has a duty to help anyone injured by his actions. Although there is less case law about accidental, non-culpable risk creation and justifiable risk creation, a few courts have suggested that a duty to aid arises in these situations as well. For example, if Fred shoots Mark in self-defense, Fred may still owe a duty to obtain medical care for Mark. A duty to act also results from voluntary assistance. One who begins to provide aid has a duty to continue to provide aid, unless the victim would be no worse off after the omission as before aid was provided.
Finally, a duty to aid can be imposed by statute. So-called “Good Samaritan Laws” require bystanders with knowledge of a victim’s need to provide reasonable assistance to the victim. The same arguments in favor of the general rule against omissions liability can be made against this type of statute.
https://www.inazu-crimlaw.com/8-omissions
ccccccccccccccc
What Is a Duty to Act?
A duty to act is a legal duty requiring a party to take necessary action to prevent harm to another person or to the general public. In personal injury law, an individual may be held to a standard of reasonable care to prevent injury or harm.
A duty to act is often imposed under a statute or from a contractual relationship. Examples include:
A doctor’s duty to care for patients
An owners’ duty to protect those who are invited upon his land
A restaurateur’s duty to provide proper fire escapes for patrons
Parent’s duty to act affirmatively to safeguard his children and safeguard third persons from his children
https://www.legalmatch.com/law-library/article/duty-to-act.h...
Peer comment(s):
| agree |
Michael Grabczan-Grabowski
: As per the discussion, I agree with your option. I'd use the original word gwarant in italics and put your suggestion in parentheses.
1 day 5 hrs
|
|
Thank you, Michael. Leszek has argued convincingly that the Polish word "gwarant" should be part of the answer in order to indicate the origin of the term.
|
11 hrs
Michael Grabczan-Grabowski
Canada
Canada
Native in English
Specializes in field
Canada
Affordable. High Quality. Native English
Native in: English (Variants: US, Australian, Canadian, New Zealand, British, UK, South African)
Works in: Spanish to English, French to English, Polish to English
Related KudoZ points
:
12
person with a duty of care // defendant with a duty to intervene
The term gwaranta, as used in your original text, is a concept particular to Polish criminal law. The word guarantor is not used in English or North American legalese in the same context. The word guarantor almost always refers to a person who provides security or gives assurance that another's obligation will be fulfilled (like a debt).
After some reading of criminal law texts in the UK, US and Canada, nowhere do they refer to the party with the legal duty of care (in the same context) as the guarantor as such.
However, let's take a look at the definitions of guarantor from dictionary.com:
"1. a person, group, system, etc., that guarantees.
2. a person who makes or gives a guarantee, guaranty, warrant, etc."
And the most relevant definition of gaurantee would be:
"... 3. something that assures a particular outcome or condition ..."
If you stretch this meaning far enough, you could potentially say that a guarantor is someone who assures (or is obligated to assure) a particular outcome or condition (as defined by the criminal law).
However, I personally share the hesitation to use the word guarantor, as it is indeed a calque of the word gwarant, and it does not have precisely the same meaning or legal reference.
If I were you, I'd leave the word in Polish in italics and put an explanation next to it:
Such a person is described in criminal case law as a gwarant (person with a duty of care).
Other options are: defendant with a duty of care or person with a duty to intervene, etc.
In the below links, I have found that the common thread among the legal literature in English-speaking countries is to refer to the role played by the gwarant as that of a person (i.e. defendant) with a legal obligation to prevent a certain bad outcome if it's in their reasonable power to do so (i.e. duty of care):
https://thestudentlawyer.com/2014/01/02/liability-for-omissi...
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2326949
https://www.britannica.com/topic/criminal-law/The-elements-o...
After some reading of criminal law texts in the UK, US and Canada, nowhere do they refer to the party with the legal duty of care (in the same context) as the guarantor as such.
However, let's take a look at the definitions of guarantor from dictionary.com:
"1. a person, group, system, etc., that guarantees.
2. a person who makes or gives a guarantee, guaranty, warrant, etc."
And the most relevant definition of gaurantee would be:
"... 3. something that assures a particular outcome or condition ..."
If you stretch this meaning far enough, you could potentially say that a guarantor is someone who assures (or is obligated to assure) a particular outcome or condition (as defined by the criminal law).
However, I personally share the hesitation to use the word guarantor, as it is indeed a calque of the word gwarant, and it does not have precisely the same meaning or legal reference.
If I were you, I'd leave the word in Polish in italics and put an explanation next to it:
Such a person is described in criminal case law as a gwarant (person with a duty of care).
Other options are: defendant with a duty of care or person with a duty to intervene, etc.
In the below links, I have found that the common thread among the legal literature in English-speaking countries is to refer to the role played by the gwarant as that of a person (i.e. defendant) with a legal obligation to prevent a certain bad outcome if it's in their reasonable power to do so (i.e. duty of care):
https://thestudentlawyer.com/2014/01/02/liability-for-omissi...
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2326949
https://www.britannica.com/topic/criminal-law/The-elements-o...
Discussion
Article 2. Penal liability for an offence with criminal consequences committed by omission shall be incurred only by a person who had borne a legal, special duty to prevent such a consequence.
https://www.proz.com/kudoz/polish-to-english/law-general/480...
Kodeks karny w art. 2 ustanawia szczególną zasadę odpowiedzialności karnej za przestępstwa skutkowe z zaniechania. Podmiotem takiego przestępstwa nie może być każdy, ale tylko osoba, którą obciąża szczególny prawny obowiązek zapobiegnięcia skutkowi. Osobę tę określa się mianem gwaranta.
http://www.sprawnik.pl/artykuly,10223,27340,odpowiedzialnosc...
However, as an outside person not having been exposed to the Polish concept gwarant before, it seems a bit odd to use the word guarantor in this particular context, which is why I suspect the asker presented his question. It's a question of sounding natural. I would venture to say that to most English-speakers' ears, the word guarantor would make them think of a person who voluntarily makes a guarantee that a particular obligation (usually a debt) would be met. The context in question refers to a situation where a person would be held liable for an offence committed by omission, which is a bit more general, but not too far off.
I think your option could work too. Language can be flexible, and words can be contextualized. It also depends on the client's preference. Personally, I think I'd still use the original term in italics and put in parentheses indicating that it refers to a person with a legal duty to act (as Frank suggested) or a person with a duty of care (https://bit.ly/36ljFCe).
Thanks for the clarification. You're right, it is minutiae. And thanks for the dictionary link, it's really useful.
I agree that your option is perfectly valid. Just to be clear: I didn't want to insinuate that your option was wrong, but rather I applied my mental process on how I would approach the translation myself. :-)
I initially wanted to agree with your option, but then I went down a rabbit hole of researching the term and decided to write down what I thought.
To be fair, if you look at the translatica.pl definition of gwarant, it also doesn't have the particular definition of „Odpowiedzialności karnej za przestępstwo skutkowe popełnione przez zaniechanie podlega ten tylko na kim ciążył prawny, szczególny obowiązek zapobiegnięcia skutkowi”. However, from what I've found, there isn't a particular one-word reference to this party in English (unless we use and define it ourselves for the Polish context, sure). If it were me, I'd refer to the original word gwarant in italics and give an explanation of it, and thereafter continue using gwarant in italics. However, a client's preferences will of course have to be taken into account as well.
It would be ideal to have a one-word term to describe the concept here, but there isn't a precise one in English. In situations like this, you can either use the original term in the source language in italics and give an explanation in parentheses or you can simply use descriptive language only.
In the context of a legal document, however, in which terms can be defined in various ways in a glossary, then guarantor could work if you assign it the intended (non-dictionary) definition beforehand.
"A defender, a protector."
The first sentence of the text that you quote actually describes the concept quite well, except in English-speaking countries they would refer more descriptively to a person with a duty of care (among other variations). There is an important difference in the meaning of guarantor, which is primarily used in other contexts.
We should also keep in mind that Polish articles are also translated by individuals who make their own decisions about how to translate a word, and no doubt many would opt to translate gwarant as the calque guarantor without a second thought. However, the further you delve into the subject, the less certain such a translation becomes...
My personal yardstick is always to think about what would communicate the meaning as clearly as possible. A reader seeing the word guarantor may have some other preconceived ideas of what it could mean, but "a person with a duty of care" is far easier understood.
Damian Tokarczyk
GUARANTOR’S OBLIGATION IN CRIMINALLAW
Summary
The purpose of this paper is to present the duties of a person obliged to prevent the occurrence of a consequential harm in criminal law. The discussion on criminal liability for consequential crimes committed as a result of a failure to perform a specific legal duty usually focuses only on the broken chain of causation and omission to act, and the sources of the obligation to take an ac-tion. The author analyses the content of the warrant’s duties, or, in other words, what a warrant is obliged to do. The limits of the obligation depending on a specific situation which is to be prevented are also discussed, followed by a list of consequences for a failure to perform the duty or improper perfor-mance of the duty by a person obliged to prevent criminal consequences.
http://docplayer.pl/21445085-Obowiazek-gwaranta-w-prawie-kar...
Perhaps this will broaden the discussion.