Nikki Scott-Despaigne Dec 11, 2011:

@ CC in NYC Your point is valid, the source is interesting and convincing. Although it is not an original language document and I do not want to sound difficult and bloody-minded, whilst we might disagree about the right/wrong of altering the orignal tense, the text posted by the asker is a paraphrase of the legal text. The asker will be able to decide what best fits his context and how much freedom there is. Perhaps it is not that important after all?!

cc in nyc Dec 11, 2011:

agree with Hal Art. 1642 A seller is not liable for defects which are patent and which the buyer could ascertain for himself.
http://195.83.177.9/upl/pdf/code_22.pdf
[Paid membership lapsed]

Nikki Scott-Despaigne Dec 11, 2011:

@Kashew It is quite common for what is a standard phrase in one language to have no satndard phrase in another language, even in ordinary situations where one might expect that to be the case.

Mary Moritz (asker) Dec 11, 2011:

Many hits Thanks to everyone for participating in the detailed discussion on this. I found many, many examples of the French phrase on the Internet for warranties or contracts. What I was unable to find were any resources to justify my choice of wording in English.

Nikki Scott-Despaigne Dec 11, 2011:

@Kashew I have seen the temr "noted" in insurance reports, expert reports and civil litigation.

kashew Dec 11, 2011:

An 1804 law clause word for word it seems: http://www.legifrance.gouv.fr/affichCode.do;jsessionid=B051B...
My point earlier was that the equivalent surely exists in English and American law.

Hal D'Arpini Dec 11, 2011:

I agree I agree, at a certain point it becomes futile to continue the discussion, but I didn't think we'd reached that point yet, since I wasn't clear on why my translation seemed to be too loosey-goosey. In any event, I will leave it at that and not provide my side of the discussion on the question of why "could have" is appropriate even though it's not the literal translation. :)

Nikki Scott-Despaigne Dec 11, 2011:

@ Hal Your interpretation is clear. The meaning of "could have" is clear. However we don't agree on whether it is a suitable solution here.
Maybe we should just agree to disagree as it looks like we are not going to see eye to eye on this one. The Asker has a couple of interpretations available and can chose. Voilà!

Hal D'Arpini Dec 11, 2011:

Left to chance? I’m not sure what’s left to chance by using “could have.” The interpretation is clear. The conditional “could have” works here because the source clause itself establishes conditions that have to be met–(1) the buyer not discovering (2) an otherwise discoverable defect – before the stated result– the seller is releived from the terms of the warranty–is triggered. If there’s another way that "could have" could be interpreted in this context, I’d be interested in knowing what that is.

Nikki Scott-Despaigne Dec 11, 2011:

a pu : was able, dixit the original.
'could have' introduces the idea of possibility, which, at a pinch, may be read into this. Not wanting to make a mountain out of a molehill, stricto sensu, a tighter, more accurate rendering of the original rules out 'could have'. 'Could convince himself...' would be acceptable in terms of perception of time, but does not sound natural. 'Could have' does sound more natural, but in my view take the time zone 1 and a half steps away from the French.
'a pu' moves closer to a defect having been noted by the purchaser, rather than it having been just a possibility.
Indeed, it may quite accurately be rendered by a common or garden simple past : 'noted'.
The whole idea is a little knotted with the idea of 'se convaincre' here...
Simple past : noted, or a passive form which means playing around with 'be'.

AllegroTrans Dec 11, 2011:

The "beef" is lawyers do not like "maybes" - these provide wriggle room for defendants. This is legal speak not everybody speak.

Hal D'Arpini Dec 11, 2011:

What's the beef? I'm not quite sure what the problem is using "could have" in this context. It fits perfectly to indicate something that the actor could have done but didn't do. Native speakers won't have a problem reading this. It's run-of-the-mill third conditional, the unreal past.
<p>http://web2.uvcs.uvic.ca/elc/studyzone/410/grammar/3cond.htm

Also, “could have” is more forceful in that it unconsciously implies that the buyer “should have” been more careful in inspecting the goods in order to discover any defects. It kind of mildly accuses the buyer of being careless. Again, all under the surface. Assuming it’s the seller that wrote up the guarantee -- it virtually always is -- this would be the intended effect.

Nikki Scott-Despaigne Dec 11, 2011:

@ Hal d'Arpini I would comment your answer but am not a paying member of ProZ so cannot do so. If I were able to comment, I'd mark : "neutral" as there is, to my mind, an important distinction to be made. The original is distinguishing two points of view, not an observation of what may be a matter of fact. It opposes the purchaser's conception of what may be a defect (one which he has convinced himself exists and can be qualified as such), with what the manufacturer is willing to accept as a defect (ne pas être tenus de).

Nikki Scott-Despaigne Dec 11, 2011:

Bit of a twist The sense of this sentence is that the manufacturer has no obligation to accept what the purfchaser may consider as such. This is where the "se convaincre" comes in. The purchaser is not being said to have 'discovered' a defect. It is saying that the fact that purchaser may believe that something is a defect, does not necessairly mean that it is in fact a defect, particularly from the manufacturer's point of view.

Hal D'Arpini Dec 11, 2011:

Thanks, Allegro I was just in the process of answering Kashew's question, but you did so quite well.

AllegroTrans Dec 11, 2011:

@ kashew On the contrary, this is standard law - caveat emptor - sold as seen etc.
See:
Latent defect - Ask Jeeves Encyclopedia
However, when the defect could have been discovered by the buyer by a thorough inspection (a "patent defect"), the buyer cannot possibly succeed in a claim against the ...
uk.ask.com/wiki/Latent_defect - Cached

kashew Dec 11, 2011:

@ Hal D'A Do you think "noticed" (or even "recognized") would be better than discover?: apparent being visible/obvious - as opposed to vice caché.
This is a standard legal phrase - and is certainly so in English too.

kashew Dec 11, 2011:

Yes, lacks the time element: looks like a total get out for the seller/maker!
I would ask.