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This question was closed without grading. Reason: Other
Mar 1, 2021 11:10
3 yrs ago
51 viewers *
French term

dérogent a la loi

French to English Law/Patents Law (general) Company Registry extract (Switzerland)
I know what this means, I just want a tight and precise English legal phrase:

Les modalités de transfert de parts sociales dérogent a la loi selon le statuts

are derogated from statute?
are exempt from statute?

These somehow do not sound right

maybe "derogate from the provisions of statute"?

Legal translators only please
Proposed translations (English)
4 +1 opt out of statute; 'override the law'
4 are exempt from (the application) of the (general) law
3 depart from the law
4 -1 represent a derogation from the law
References
Statuts

Discussion

Daryo Mar 2, 2021:
Bien trouvé and it's exactly what you would expect - an exemption from some general rule, a perfectly legal / authorised one.
ph-b (X) Mar 2, 2021:
From "Pratiques relatives au nouveau droit" (CH) 7. Modalités de transfert des parts sociales
Article 73 alinéa 1 lit. n ORC :
Ces faits devront être requis de la façon suivante:
"Les modalités de transfert des parts sociales dérogent à la loi selon les statuts."
Si un quorum particulier, qui déroge au quorum légal de l'article 808b CO, est prévu pour l'approbation du transfert des parts sociales, il y a lieu de le mentionner dans l'inscription en tant que dérogation au système légal.
(https://www.ne.ch/autorites/DEAS/NECO/rcne/Documents/MOD_DIR...
Daryo Mar 1, 2021:
@ Eliza Hall whatever a literal / "context-free" interpretation of "déroger" would suggest, there is absolutely nothing illegal happening in this text, nor is any law being "ignored / disregarded / breached ..." (see what I said about previously about "la preuve par l'absurde")

Just re-arrange the sentence and add the "implicit part" to the explicit text and it all makes perfect sense:

Les modalités de transfert de parts sociales dérogent a la loi selon les statuts
=
Selon les statuts (de la Société) les modalités de transfert de parts sociales dérogent (aux dispositions de) la loi (qui sont) applicables par défaut.

This is far from being the first example of what happens quite often - when writing for an indented audience that is supposed to be "on the same wavelength", authors just leave out bits that are "blindingly obvious" - to them and to whoever is in the same "trade".

Thinking of it, there are samples aplenty of various French legislation where as part of some law / regulation you have first some general rule formulated, followed by one or more perfectly legal "dérogation(s)" to that same general rule, applicable only in some specific situations.
Conor McAuley Mar 1, 2021:
To Chris (AT):
I like it used in English in a "certain" tone. I'd better not develop.

NEVER (or VERY rarely) as a translation for "fonctionnaire".
AllegroTrans (asker) Mar 1, 2021:
@ Conor You like functionary? You're kiddin' us...
Yes, I admit the word occasionally has its uses, but for an ordinary civil servant or official? Surely not? I was a "fonctionnaire" when I worked for the EU but the official English term for us was "officials"
Conor McAuley Mar 1, 2021:
We're off-topic...
...but see definition 2 here:
https://www.merriam-webster.com/dictionary/modal

In the same vein, I like functionary.
Mpoma Mar 1, 2021:
Modality Whenever I hear the word "modality" in English I reach for my Joyce. In Ulysses there's a chapter which begins with Stephen Dedalus contemplating the "ineluctable modality of the visible". The consensus seems to be that Joyce was mocking his younger self, and his intellectual pretensions, by using this pseud-ish phrase. Apart from that instance I'm not sure I've ever heard an Anglophone use this word, ever (except possibly outside some of the worse translations to be found in Linguee).
AllegroTrans (asker) Mar 1, 2021:
@ Eliza It's the second of your explanations, for sure
AllegroTrans (asker) Mar 1, 2021:
Thanks everyone... for contributions, but I do rather shudder at "modalities", it sounds like pure Translationese to my ears and FHS Bridge certainly does not suggest its use (I have become a life member of his fan club since acquiring a copy of his Fr-En legal dictionary for the modest price of UK£12.50)
Nikki Scott-Despaigne Mar 1, 2021:
do not follow X As I understand it, according to the articles of association, the modalities regarding the transfer of shares do not follow the law. By "do not follow", I'd need more context, but I don't necessarily mean "fail to comply", although that may be what it boils down to.
ph-b (X) Mar 1, 2021:
depart from the law? Would that work here and cover just about everything, including obvious typos, regardless of what the rest of the text says?
Eliza Hall Mar 1, 2021:
Just to double-check Since déroger à la loi can simply mean to contravene, fail to comply with, disobey, etc. the law, are we sure that that's not the meaning here?

In other words, are we sure that this just means the articles/bylaws don't follow the model law but are nevertheless perfectly legal? As opposed to that they're improper because they contravene the law?
Daryo Mar 1, 2021:
yes there is an obvious typo - it should be " ... les status".

But that typo is completely secondary - makes about as much difference as a speck of dust on a painting.
philgoddard Mar 1, 2021:
Allegro Look at it again - it's a typo.
Daryo Mar 1, 2021:
Interpreted literally without bothering to scratch the surface, it might sound like that:

for 'dérogent à la loi': constitute an exception to statute/statutory rules/statutory procedures

But in actual fact in this specific ST what they have done when incorporating their "société" is perfectly legal - "within" the law. They haven't done anything that could be seen as an "exception to statute/statutory rules", on the contrary they have acted according to the statute book.

Another way of looking at it, "la preuve par l'absurde" - might not be the most elegant method, but never fails.

If this is a "Company Registry extract (Switzerland)", then whatever is in it must be "legal" - I can't see a "Company Registry" (especially in Switzerland) accepting to register a company with illegal provisions in its Articles of Association!
Hamilton (X) Mar 1, 2021:
for 'dérogent à la loi' ... you might wish to consider: constitute an exception to statute/statutory rules/statutory procedures
AllegroTrans (asker) Mar 1, 2021:
@ Conor Yes, it's the full extract, "les statuts" = the Articles of Association (of the particular company)
AllegroTrans (asker) Mar 1, 2021:
@ Phil "les statuts" are clearly the company's Articles of Association, not a typo
philgoddard Mar 1, 2021:
It says "le statuts", which is a typo and may be what's confusing Allegro and Adrian.
Conor McAuley Mar 1, 2021:
Hi Chris
Have you posted the full extract, i.e. is "les statuts" the end of the sentence?
Daryo Mar 1, 2021:
Makes no difference there is no way that "les statuts" in French could mean "statute(s)" as in "the statute book" (= the legislation) - that meaning would be excluded for being a blatant /obvious "false friend".

IOW, there is already more than enough context.
Conor McAuley Mar 1, 2021:
Hi Chris
Have you posted the full extract, i.e. is "les statuts" the end of the sentence?
Daryo Mar 1, 2021:
event if it was the end of the sentence in this context it could ONLY be (implicitly or explicitly, makes no difference) "les status de ..." la société / l'entreprise, or whatever is the legal form of this entity that made its own rules regarding "les modalités de transfert de parts sociales " .

There's no way in a year of Sundays that anything else could make sense.
Conor McAuley Mar 1, 2021:
Hi Chris
Have you posted the full extract, i.e. is "les statuts" the end of the sentence?
Daryo Mar 1, 2021:
It sounds quite logical to me And it's not some "special case".
It's the same in UK (and many other countries) - when you want to create a new company you can just "reuse" the defaults (the "model") from Company Law, or you can keep making to no end whichever own intricate rules you want, as long as your own rules are not expressly illegal.

Proposed translations

+1
2 hrs
French term (edited): déroger à la loi

opt out of statute; 'override the law'

- as in the UK, Table A Articles of Assoc. automatially apply as a 'default', unless opted out of.

Les modalités de transfert de parts sociales dérogent a la loi: weblink > 'the ways of transferring override the law...' may be bestowing on this arrangement a legislative status it does not have.

déroger à: 'exclude the operation' of a rule etc.; create an exception 'from'; vary or depart from > Bridge.

clause dérogatoire: 'derogatory clause' > Navarre cf. opt-out clause, as used in legal US, Can and Anglo-Irish practic/se.

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Note added at 4 heures (2021-03-01 15:44:25 GMT)
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Asker's comment: la loi is shorthand for the provisions https://www.murielle-cahen.com/publications/cession-part.asp plus, as mentioned to Daryo, whole French and Spanish statutes - unless 'mandatory' - can be opted out of lock, stock and barrel by legal drafting.

Otherwise, the 'resilient translation' rule applies: opt-out of worked in nine cases out of ten for many decades.
Example sentence:

IATE: forget the FRE/ENG entries > Entry domains: European construction (1016) [EUROPEAN UNION] LAW (12) Council en opt-out clause Council opt-out provision Council opt-out Council fr clause d'exemption COM disposition dérogatoire

Opt-In Laws in the U.S. and EU This webpage from L-Soft includes a table that aims to give an overview of the basic email requirements in the United States and Europe and checklists of legal requirements and best practices for email.

Reference:

http://www.proz.com/kudoz/french-to-english/computers-systems-networks/5995000-déroger.html

http://www.proz.com/personal-glossaries/entry/2009085-déroger-à-depart-from-to

Note from asker:
"opt out" would work re the provisions of statute, not statute itself
Peer comment(s):
neutral Daryo : in principle yes (you gave basically the same explanation as mine) but I find it mildly misleading - they are not really "opting out of the law", they are just using one of the options offered by the law - it's all still "within the law".
48 mins
You never used the term either of opt-out or of override, besides which the law is shorthand for the provisions contained therein. NB some French and Spanish laws can be opted out of wholesale by legal drafting: we often did at our offices.
agree ph-b (X) : with "depart from the law" mentioned in your explanation and which I had not seen when I posted in the discussion.
7 hrs
Merci, Philippe. That is in fact one of Bridge's permutations + combinations. As mentioned, a whole legal enactment can be 'disapplied' either by the court - cf. the UK Merchant Shipping Act 1988 in Factortame - or by drafting: being *contracted out of'
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9 hrs

depart from the law

One translation of déroger à which I find myself using quite a bit. Surprised no-one else seems to have suggested this yet. (Ah, Adrian MM has mentioned this solution).

But... "depart from the law" sounds a bit crappy to my ears, as does however déroger à la loi. Normally I think you'd expect to hear something along the lines of déroger aux dispositions juridiques en la matière.

I don't seem to read it the way you do: it seems to me that they are saying the transfers "are implemented according to the Memorandum and Articles, in the manner in which these depart from the legal provisions applicable to such transactions."

Is there any reason you are not (as I understand it) reading statuts as "Memorandum and Articles"?

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Note added at 9 hrs (2021-03-01 20:51:30 GMT)
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(After reading more of the comments and discussions). Yes, what the hell does "depart from the law" mean? Does it mean "break the law"? Probably not. I think they are talking about legal recommendations, from which it is permitted to depart. Again, the glaring illiteracy of the French expression is difficult to deny, it seems to me. What's the rest of the text like?
Note from asker:
Thanks, there is no "rest" to the text, it's a standard line among others in a Swiss extract from the Trade Register
Peer comment(s):
disagree Daryo : you can not "depart from the law" when you are in actual fact applying the law - by choosing between two equally legal options offered by the said law: 1- use a "model" or 2 - create your own Articles of Association
1 hr
agree philgoddard : Seems reasonable, but I'm mainly agreeing because Daryo has disagreed :-)
1 hr
neutral ph-b (X) : Just to say that there's nothing crappy about déroger à la loi. The original Swiss text is from an official document (see discussion) and Le Grand Robert confirms it is acceptable.
16 hrs
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-1
10 hrs

represent a derogation from the law

No one except Allegro has mentioned "derogate", which seems the simplest solution. "The provisions of the statutes relating to share transfers represent a derogation from the law".
Peer comment(s):
disagree Daryo : literal translation that makes no sense in this text // Who is talking? Someone whose usual self-asserted reference/argument is "I don't really understand the ST / makes no sense to me, but never mind that little detail ..."?
26 mins
And this from someone who thinks that "Modalities of transfer of the society's parts" is English...
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22 mins

are exempt from (the application) of the (general) law

Les modalités de transfert de parts sociales dérogent a la loi selon le(s) statut(s)
=
the procedures / ways / modalities of transfer of the society's parts/shares are not subject to the (general) law, according to the society's "statutes/articles of incorporation / memorandum of association (whatever is called the act that create that legal entity)

CL5++ about the meaning, the wording can be varied.

IOW

there are "modalités de transfert de parts sociales" that are defined in the general law and that apply by default, but these "defaults" are obviously not compulsory but leave some leeway to make your own rules when creating your own "société".

= in the "articles of incorporation" have been agreed some "modalités de transfert de parts sociale" that are different from the presumed / default rules stipulated by the law, so these "modalités" are exempt from the application of the (default stipulations of) law.


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Note added at 4 hrs (2021-03-01 15:31:02 GMT)
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or to more accurate:

are exempt from (the application of) the default rules stipulated by (company) law





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Note added at 4 hrs (2021-03-01 15:34:14 GMT)
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as what they are doing is perfectly legal ("within the law"), they only exercised the perfectly legal option not to use "the model / the default rules".

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Note added at 5 hrs (2021-03-01 16:19:43 GMT)
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one proposition for the whole sentence:

Les modalités de transfert de parts sociales dérogent à la loi selon les statuts
=
According to the Articles of Association, transfer of shares modalities (/ methods / rules / procedures ...) are exempt from the default provisions of the law.

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Note added at 13 hrs (2021-03-02 00:47:26 GMT)
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Regarding: "Exempt" suggests that some authority of government has made the company exempt

In a sense, you could say that it's exactly what happened - the "authority" (/the lawmaker) exempted the Company from the obligation to follow "the model".

Or you could say that the company "exempted itself" from the default rule (/ "the model") simply by exercising an option offered by the law.

To make a parallel, a "permitted development" is in fact an "exemption" from the general planning rules? Or how else would you call it?

Note from asker:
Ugh! modalities! I rather think this is not really "exempt" in the strict sense
"Exempt" suggests that some authority of government has made the company exempt.This is about a lawfully valid choice made by the company to apply certain provisions of its Articles of Association in place of those normally prescribed by law
Peer comment(s):
neutral Gina W : modalités = terms (and conditions), not modalities; parts sociales are shares of a company, not a society
1 day 12 hrs
there are two different terms, depending on you putting your money in "une société de personnes" or "une société de capital ", so it's NOT always "shares", but it's too much of a digression, no point going into that, better left for another time.
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Reference comments

2 hrs
Reference:

Statuts

Note from asker:
I misstyped - yes it's "les ststuts" and I know what they are = thank you!
Peer comments on this reference comment:
agree Daryo : yes, it's about that!
6 mins
agree philgoddard : I think it's important to point this out, because some people are confusing statute and statutes.
1 day 38 mins
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