Wiesmann, Eva (2018). Der notarielle Immobilienkaufvertrag in Italien und Deutschland. Eine kontrastive diachronische Untersuchung zur Bedeutung von Norm und Konvention sowie zur Entwicklung der Textsorte. Berlin: Frank & Timme
Compte rendu par Fabio Proia
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Version HTML du compte rendu [English]:
Eva Wiesmann’s monograph offers an overview of notarial deeds of sale for real estate in Italy and in Germany. Its main objective is the development of an analysis model that allows to carry out a corpus-based contrastive description of the investigated type of legal text. More importantly, it is meant to explore which factors influenced its linguistic features in the course of time and to what extent it has been affected by provisions regulating the office of notary on the one hand, and by conventions determined by the books of forms and/or traditional notarial practices on the other.
Comparable corpus-based studies, dealing with a specific type of text in two or more legal systems and using the theoretical framework of contrastive textology, usually follow a synchronic approach (p. 31). Wiesmann instead decides to enrich her analysis by including the diachronic dimension, as the subtitle suggests. As a result, she delivers a valuable contribution to the diachronic linguistic investigations – rather the exception than the rule in contrastive textology, as statistics clearly show (p. 32) – and offers a valuable contribution to the study of German and Italian legal languages and cultures.
With regard to their content, the chapters in the study could be divided into two blocks, separated by the extensive and insightful chapter 6. The first block (chapters 1 to 5) provides the theoretical and practical information needed to understand the results of the contrastive analysis presented in chapter 6. The second block includes the Conclusions and outlook (Chap. 7), followed by a Summary in Italian (Chap. 8) and a comprehensive updated Bibliography (Chap. 9). Finally, the closing Appendix (Chap. 10) contains the copy of one Italian and one German original notarial deed of sale for real estate from the 19th century.
The first block opens with an Introduction (Chap. 1) in which the author states the aims and objectives of her analysis and describes the structure and contents of the book. The choice of the text type (“notarial deed of sale for real estate”) is well explained with both historical and practical reasons (p. 13-14). The research questions addressed by the study and their corresponding research hypotheses can be summarized as follows:
1. The higher degree of synchronic variability – at various linguistic levels – found in the Italian texts, as compared to the German ones, might be due to a greater orientation towards traditional notarial practices.
2. The influence of history and traditions on notarial practices of the present time might be stronger in Italy, where the Latin notary office first originated, than in Germany.
3. Diachronic changes in the Italian and the German deeds of sale might be the effect of different factors. While the former seem to be strongly influenced by tradition, the latter change in order to comply with new provisions. In other words, the strong orientation to traditional notarial practices in Italy might have inhibited the linguistic innovation caused by new legal standards.
Chapter 2 gives an overview of the traditional and new approaches of contrastive textology, with a special focus on the integration of the diachronic dimension (2.1). After describing the objects of study of the discipline and its development over the years, the author explores the role of notarial deeds of sale for real estate as an object of interdisciplinary research conducted by lawyers, legal historians, philologists as well as linguists and translation scholars (2.2).
The following chapter 3 contains an interesting and enlightening overview of the linguistic and textual features of the type of text under scrutiny (3.2). Since it is composed of both a standardised frame structure (i.e., the notarial deed) and a transaction-specific written declaration (i.e., the deed of sale for real estate), it requires a comprehensive analysis on different linguistic, textual and legal levels, as the later chapter on methodology will elucidate (Chap. 5).
Chapter 4 begins with a detailed overview of the birth of the notarial profession and its historical development in Italy and Germany (4.1). Subsequently, it moves on to an in-depth description of the factors which are likely to have affected the linguistic and textual features of notarial deeds, namely provisions regulating the office of notary (4.2.1), books of forms (4.2.2) and traditional notarial practices (4.2.3). These elements are relevant to both the analysis model – described at the end of Chapter 5 – and the text analysis carried out on its basis (Chap. 6). The final section (4.3) offers a comparative examination of the deed of sale for real estate and the tasks of a notary in Italy and Germany today.
The last chapter of the first block (Chap. 5) illustrates the theoretical and methodological basis of the analysis. After summarizing the working methods of contrastive textology (5.2) and explaining her research design (5.3), the author gives a detailed description of the corpora used for the analysis (5.4). The main object of investigation is the so-called “primary corpus”. It consists of one German and one Italian subcorpus, each containing 100 original notarial deeds of sale for real estate, drawn up between 1860 and 1959, transcribed and digitized by the author. The “secondary corpora” are composed of a secondary corpus I and a secondary corpus II, both of which consist of two subcorpora, one for each language. The first contains provisions regulating the office of notary in the two legal systems; the latter is a collection of notarial templates extracted from books of forms that might have been used by the draftsmen of the deeds of sale included in the primary corpus. All these corpora serve different research purposes and turn out to provide interesting data. The primary corpus, for example, allows both intralingual analysis and interlingual comparisons, in particular of the standardised frame structure, on the synchronic as well as the diachronic axis. On the other hand, the examination of the two secondary corpora makes it possible to explore whether and to what extent the Italian and German notaries were guided during the drafting process by provisions and/or by templates. The chapter concludes with a description of the analysis model, developed by the author specifically for this work (5.5).
After such a comprehensive introductory part, covering the first five chapters, the reader may now tackle the empirical part of the work, contained in Chapter 6. The contrastive analysis has been carried out primarily on a sample of content elements belonging to the frame structure and appearing in both the Italian and the German notarial deeds. Each element is dealt with in a separate section, consisting of three subsections. While the first two are dedicated to Italy and Germany respectively, the third one (“Vergleich”) highlights the differences emerged from the corpus analysis and their degree of observance of provisions and/or conventions. The final section of the chapter (6.5) summarizes the findings of the analysis with regard to the research hypotheses formulated in the introduction. The different impact of provisions and conventions on the investigated content elements is clearly outlined in Table 52 (p. 413-416).
Wiesmann’s monograph is challenging and demanding, for various reasons. The impressive amount of information contained in its chapters, the theoretical and methodological background (Chap. 2, 3) and the overall complexity of the subject matter are among the main ones. On the other hand, frequent cross-referencing between the chapters and some useful repetition of crucial concepts provide coherence to the text and enable a better understanding of the data and findings presented. These textual devices are helpful especially when the style of writing adds unnecessary linguistic difficulty to the complexity of the topics. The degree of difficulty inherent in a study of this kind explains the author’s choice to precede the linguistic-textual analysis (Chap. 6) with an exhaustive overview in which the notarial deed of sale for real estate is placed in the German and Italian historical, cultural and legal context that produced it (Chap. 4). Finally, special mention deserve the corpora, specifically compiled by the author for the analysis and thoroughly described in section 5.4. Particularly noteworthy is the primary corpus, because it contains only authentic texts obtained from German and Italian public archives.
In conclusion, this work is a valuable interdisciplinary resource for academics – both linguists and lawyers – as well as practitioners (legal translators) who need to get linguistic and/or legal insight into a common text type in the legal relations between Italy and Germany. The intralingual and interlingual approach of the analysis makes it interesting also for readers interested mainly in one of the two languages investigated. In this respect, the presence of separate subsections for each country in 6.4, the section presenting the analysis of selected content elements extracted by the corpora, might prove very useful for this kind of readers.
19 octobre 201931(2) - 2019