lacuna intra legem

13:33 Mar 28, 2014
This question was closed without grading. Reason: Other

Latin to English translations [PRO]
Law/Patents - Law (general)
Latin term or phrase: lacuna intra legem
A distinction is drawn between a “lacuna intra legem” where the law makes provision for a certain matter but is silent on certain issues that need to be addressed in order to resolve the case at hand (an example of this in Turkish law is where the Civil Code permits a person to apply to change their name, but only if there is good reason for doing so, but does not specify what constitutes good reason and leaves this to the discretion of the judge) and a “lacuna praeter legem”, where the law makes no provision at all for the matter.

When trying to find the accepted English equivalents of these terms, it appears that they are mainly used with reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG), and, in this context, the pair “external/internal gap” is used synonymously with “lacuna intra legem/ praeter legem”, as in, for example:

‘A synonym for a “lacuna intra legem” is an “external gap” or an “apparent/obvious gap”. The opposite of a “lacuna intra legem” is a so-called “lacuna praeter legem”, an “internal gap” or a “concealed/hidden gap”.’

CISG Methodology edited by André Janssen, Olaf Meyer, page 264

http://books.google.com.cy/books?id=LQtxs2NbipkC&pg=PA264&lp...

What puzzles me is that this should surely be the other way round. Etymologically, “intra legem” means “within the law”, and logically we are dealing with a gap that is internal to the law, so surely this should be an “internal gap” and not an external one.

I would be grateful if anybody could clear this up for me.
Tim Drayton
Cyprus
Local time: 17:59


Summary of answers provided
5 +1a gap within the law
Stephen C. Farrand
4loophole in the law
Joseph Brazauskas
Summary of reference entries provided
finding
liz askew

Discussion entries: 3





  

Answers


42 mins   confidence: Answerer confidence 5/5 peer agreement (net): +1
a gap within the law


Explanation:
My answer concerns the Latin phrases only, not their use in this legal context. You are correct-- a lacuna is literally a pond, puddle or ditch; figuratively, a gap or lack. lacuna praeter legem literally means "a gap beside/apart from the law".

This is the first case I've ever come across where--apparently--the legal use of a Latin phrase is the opposite of its meaning in Latin qua Latin.

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Note added at 1 hr (2014-03-28 15:02:55 GMT)
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In response to Mr. Drayton's note, it seems to me we are up against the lack of articles in Latin. Two sub-categories of the category "gap within the law": 1) "gap within a (particular) law"; 2) "gap external to a (particular) law".

Stephen C. Farrand
United States
Local time: 11:59
Native speaker of: Native in EnglishEnglish
PRO pts in category: 4
Notes to answerer
Asker: The trouble is that in legal discourse, “lacuna intra legem” and “lacuna praeter legem” are both considered to be sub-categories of "gap within the law".


Peer comments on this answer (and responses from the answerer)
agree  Łukasz Gos-Furmankiewicz
1 hr
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1 hr   confidence: Answerer confidence 4/5Answerer confidence 4/5
loophole in the law


Explanation:
Literally 'hole (I.e., defect) within the law'. A metaphorical use, cf. Lewis & Short, s.v. lacuna II. 'Lacuna praeter legem' is an 'exception to the law', i.e., a clause in the law which exempts certain specific categories of persons, things, or actions from some legal liability.

Joseph Brazauskas
United States
Local time: 11:59
Native speaker of: Native in EnglishEnglish, Native in SpanishSpanish
PRO pts in category: 26
Notes to answerer
Asker: My question is quite specifically about legal terminology. The terms 'lacuna', 'gap' and 'loophole' are pretty much synonymous in legal discourse, and the term I am asking about is one of a pair used to describe two opposing sub-categories. "Lacuna praeter legem", as i understand it, does not have the meaning scribed to it by Lewis & Short, but describes a situation where the law is entirely silent. The main thing that is puzzling me is that the terms "external/internal gap" are used in texts discussing the CISG, but they appear to me to be matched with the wrong Latin cognates. If "lacuna intra legem" was paired with "internal gap", this would make sense to me, and the problem would be solved, but the opposite is the case.

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Reference comments


9 mins
Reference: finding

Reference information:
http://www.cisg.law.pace.edu/cisg/biblio/1ferrari.html

However, the peril of diverging applications of the Vienna Sales Convention is not totally cured by the introduction of those provisions because they do not identify a method of interpretation or gap-filling, but only a goal -- the promotion of uniformity.[29] The rule to be applied in cases of gaps, for example, does not identify any helpful criterion to determine in concreto when a gap is considered a lacuna intra legem, i.e., the matter is outside the scope of the Convention, as opposed to a lacuna praeter legem, i.e., the Convention applies to the issue but does not expressly resolve it. This problem is most important in determining the exact sphere of application of the Convention.[30]

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Note added at 11 mins (2014-03-28 13:45:18 GMT)
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and

page 5 here

http://books.google.co.uk/books?id=F8CeAgAAQBAJ&pg=PA5&lpg=P...

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Note added at 12 mins (2014-03-28 13:46:09 GMT)
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..excluded from the sphere of application of the Convention....

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Note added at 14 mins (2014-03-28 13:47:26 GMT)
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I think I would avoid using "gap" and give a brief gist of the meaning as in the quoted texts above

liz askew
United Kingdom
Native speaker of: Native in EnglishEnglish
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