manquer en fait

English translation: be factually defective; to err on the facts

GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW)
French term or phrase:manquer en fait
English translation:be factually defective; to err on the facts
Entered by: Amy Grieve

12:49 Jun 27, 2020
French to English translations [PRO]
Law/Patents - Law (general) / Cour de cassation
French term or phrase: manquer en fait
Attendu que la SA XXX conclut encore a l'irrecevabilité des moyens de cassation pour manquer en fait au motif que la demanderesse en cassation a reproché au juge d'appel, saisi de la seule question de la recevabilité, de ne pas avoir procédé a un examen au fond du litige;
Attendu qu'un moyen manque en fait lorsqu'il fait dire a une décision judiciaire un chose qu'elle n'a pas dite;
Attendu que le reproche fait en droit au juge d'appel de ne pas avoir procédé a un examen du fond ne constitue pas un manque en fait;

The only real translation I can find is "lack of evidence", but this doesn't seem to fit here and I am struggling to come up with a suitable translation. Any help/explanations would be greatly appreciated!
Amy Grieve
Local time: 19:56
be factually defective; to err on the facts
Explanation:
as per ECJ-judicially and judiciously experienced Wordwatcher's discussion entry: 'a plea is factually defective when it purports to say that a judicial decision says something which it did not in fact say'

Otherwise: en fait > err on the facts vs. en droit > err in law - the routine split for those of us who have drafted grounds of appeal in both civil and criminal cases.
Selected response from:

Adrian MM.
United Kingdom
Grading comment
Actually all the answers given were completely valid - they allowed me to have a real explanation of the term as a whole, and in various contexts. Thank you to everybody for your valuable assistance.
4 KudoZ points were awarded for this answer



Summary of answers provided
4 +2be factually defective; to err on the facts
Adrian MM.
4 +1for lacking any factual grounds
Daryo
4 +1is groundless/is meritless
Eliza Hall
3 +2to fail on grounds of fact
AllegroTrans
3 -1to lack supporting evidence
Lisa Rosengard
2 -1failure of proof
mrrafe
Summary of reference entries provided
manquer en fait fwiw/fyi
writeaway

Discussion entries: 9





  

Answers


1 hr   confidence: Answerer confidence 2/5Answerer confidence 2/5 peer agreement (net): -1
failure of proof


Explanation:
Without more context I son't clearly understand the ST's reasoning, but based on the similarity between the two expressions, I think the ST is using "manquer en fait" to describe something like what American EN would call "failure of proof." However, the difference is that failure of proof in US law usually is a lack of factual evidence, whereas the ST seems to be talking about something broader - a failure to show justification, which could be lack of a general rationale rather than lack of facts. So it may not be possible to properly translate "manquer en fait" into EN, the language of Anglo-American law.

But whatever "en fait" means here, I don't think it's merely an editorial remark like "actually."

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Note added at 1 hr (2020-06-27 14:30:06 GMT)
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Again, l'm unsure what situation the rest of the ST was getting at, but this may help explain EN failure of proof if it's not too elaborate: https://courses.lumenlearning.com/suny-criminallaw/chapter/5...


    Reference: http://www.opentextbooks.org.hk/ditatopic/28395
    https://en.wikipedia.org/wiki/Burden_of_proof_(law
mrrafe
United States
Local time: 14:56
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 28

Peer comments on this answer (and responses from the answerer)
disagree  Eliza Hall: Not consistent with the definition in the text ("un moyen manque en fait lorsqu'il... etc."), and "proof" doesn't make sense in this context.
2 hrs
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4 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): +2
to fail on grounds of fact


Explanation:
grounds of fact vs grounds of law

errors of fact and errors of law as grounds for ... - HeinOnline
heinonline.org › hol-cgi-bin › get_pdf › irishjur43
All of the standard commentaries on English administrative law highlight the judgment of Lord Reid as one of the ground-breaking judgments of the twentieth ...
by J O'Reilly - ‎Related articles

The distinction between questions of fact and questions of law ...
www.fedcourt.gov.au › seminars › jennifer-batrouney
20 May 2014 - Thus, as Gummow J observed in TNT - the existence of a question of law is now not merely a qualifying condition to ground the appeal, but also ...

AllegroTrans
United Kingdom
Local time: 19:56
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 1099

Peer comments on this answer (and responses from the answerer)
neutral  Eliza Hall: (Revised, see discussion). This would likely work in the administratif context, but PhB explains the difference in the cassation context (see discussion). Also, it's not about errors of fact vs. of law -- see explanation in my proposed translation.
10 mins

agree  SafeTex: I have a preference for Daryo's formulation but this did not deserve a disagree and is on the right track so I'm going to right a wrong. Please see my point in discussion
2 hrs

agree  Daryo: basically a variant of my own answer, so surelly "agree". Can't see why Eliza thinks it's wrong.
2 hrs
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4 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +1
is groundless/is meritless


Explanation:
A moyen in this context is an argument advanced by a party as to why they should win. For more on that, I can't link directly, but you can just scroll down to "moyen" here:

Moyen: Argument présenté en demande ou en défense par le justiciable...
https://www.jurisconsulte.net/fr/lexique/?lettre=M

That link is about administrative proceedings, in which an argument that manque en fait is one that is utterly groundless, unsupported by any facts whatsoever, or based on true but irrelevant facts.

In PhB's explanation (see discussion) of the cassation context, such an argument is groundless because it is not supported by what the judge below actually wrote -- in other words, the party filing the appeal is arguing, "We should be granted an appeal because the judge below said XYZ and XYZ is wrong," but actually the judge didn't say XYZ at all; they ruled against you for a different reason than the one you're complaining about.

In Amy's example, the appellant (demanderesse en cassation) "reproached the judge... for failing to examine the merits of the case," and asked for an appeal on that basis -- but the judge wasn't even supposed to examine the merits in the first place because he had been "saisi de la seule question de la recevabilité" (IOW his job was just to determine whether the case could be heard by the appeals court at all, not examine the merits of the case -- i.e. not to look at all the underlying facts and decide who should have won).

That argument "manque en fait" because it is utterly groundless: you can't reproach a judge for failing to do something that he wasn't supposed to do in the first place. And you can't argue that a judge was wrong not to grant you an appeal when the reason you're complaining about (failing to examine the merits) is not the reason he decided not to grant you an appeal.

There are a few ways you could say this in EN, and I would normally prefer "meritless," but not in this case because it would be confusing. The normal EN translation for anything about "le fond" of a legal case is "the merits" (considering the merits, examining the merits, ruling on the merits, etc.). IOW the actual meat of the case itself. Since failure to examine the merits of the case is what the judge was reproached for doing, you don't want to create possible confusion by using "meritless," so I would suggest the synonym "groundless."

PS: I would avoid anything with the word "fact" because that has a slightly different meaning in EN legalese -- it relates to evidence and to the truth or falsity of facts, which isn't the issue here. For instance, we talk about "errors of fact" (the judge got the facts of the case wrong) vs. "errors of law" (the judge got the facts right but the law wrong). So, to avoid confusion I would avoid fact/factual, and of course also, for the same reason, anything relating to evidence (e.g., "proof" as MrRafe suggested).

Eliza Hall
United States
Local time: 14:56
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 113

Peer comments on this answer (and responses from the answerer)
agree  Yolanda Broad
4 mins
  -> Thank you.

disagree  Daryo: Agree with 99% of your reasoning. BUT "manquer en fait" is specifically and ONLY about missing "factual grounds" - so the unspecific "groundless" that would ALSO apply to "manquer en droit" is simply too vague.
1 hr
  -> Did you read the PS that's in my answer/explanation? It says why I would avoid the word "fact" here. EN legalese distinguishes between factual vs. legal errors in a slightly different way than FR does.

agree  writeaway: to counter the disagree
2 hrs
  -> Thanks :)

agree  Chris Pr: ...factually meritless or baseless...
21 hrs
  -> Thanks. Those work too (though in this particular text, I would avoid "meritless" for the reasons in "PS" above).

disagree  SafeTex: "Groundless" is just too vague and others have said too why "fact/factual/de facto should be included even at the level of cassation and what facts we are in fact talking about
2 days 13 hrs
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4 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +1
pour manquer en fait
for lacking any factual grounds


Explanation:
pour manquer en fait = the claim is based on s.t. that didn't happen / doesn't existe.

as explained further down the text:

Attendu qu'un moyen manque en fait lorsqu'il fait dire a une décision judiciaire une chose qu'elle n'a pas dite



--------------------------------------------------
Note added at 7 hrs (2020-06-27 20:07:14 GMT)
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In THIS text the "fact" that didn't happen / doesn't exist in the opinion of La Cour de cassation is about the supposed inaction of the appeal court (i.e. about points of procedure) NOT about any "facts" directly related to the meritum of the case.

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Note added at 2 days 8 hrs (2020-06-29 20:55:37 GMT)
--------------------------------------------------



As the most general rule ANY legal action in ANY court about just ANYTHING must be based on the right "grounds", which are of two types, and the claimant must get both right:

- the factual situation (factual grounds)
- the law that is supposed to be applicable to the factual situation (legal grounds)

if the judge consider the "factual grounds" to be wrongly presented then it's said of the claim "manquer en fait"

if the judge consider the "legal grounds" to be the wrong / non applicable to the case then it's said of the claim "manquer en droit"

As La Cour de cassation is examining points of procedures the "factual grounds" of the case when it comes to the "Cour de cassation" would be about the procedure followed by lower courts, which is exactly what is said in this text - the "factual ground" in the legal action before La Cour de cassation are about the procedure that the appeal court supposedly should have to follow. As La Cour de cassation didn't agree about that, this "fact" about the appeal court not following the right procedure is non-existent / missing i.e. the claim is said to "manguer en fait"

The only thing that is "special" about La Cour de cassation is that "factual grounds" are about procedure followed (or not) by lower courts, and not about the object of the dispute itself- BUT the general rule/requirement about factual and legal grounds still applies.

IOW "manquer en fait" is ALWAYS about missing "factual grounds" - the only aspect that varies is the nature of these "factual grounds" - about the procedure or about the meritum of the case itself.


Daryo
United Kingdom
Local time: 19:56
Native speaker of: Native in SerbianSerbian, Native in FrenchFrench
PRO pts in category: 171

Peer comments on this answer (and responses from the answerer)
neutral  Eliza Hall: (Revised, see discussion). This would likely work in the administratif context, but PhB explains the difference in the cassation context (see discussion). Also, it DID happen -- the judge did fail to examine le fond.
12 mins
  -> NO the supposed "factual ground" DIDN'T HAPPEN: the appeal judge wasn't asked at all to consider "le fond" so the alleged "dereliction of duty" (i.e. that "the appeal judge hasn't done what was supposed to be done" is not a fact.

agree  SafeTex: This is like AllegoTrans suggestion but I prefer your grammar. I also think your idea and his are the closest to what is meant but please see my discussion for alternatives
2 hrs
  -> Thanks!
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2 days 21 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +2
be factually defective; to err on the facts


Explanation:
as per ECJ-judicially and judiciously experienced Wordwatcher's discussion entry: 'a plea is factually defective when it purports to say that a judicial decision says something which it did not in fact say'

Otherwise: en fait > err on the facts vs. en droit > err in law - the routine split for those of us who have drafted grounds of appeal in both civil and criminal cases.


    Reference: http://www.proz.com/kudoz/french-to-english/law-general/7727...
Adrian MM.
United Kingdom
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 160
Grading comment
Actually all the answers given were completely valid - they allowed me to have a real explanation of the term as a whole, and in various contexts. Thank you to everybody for your valuable assistance.

Peer comments on this answer (and responses from the answerer)
agree  GILOU
18 hrs
  -> Merci encore une fois and woof, woof,,,,

agree  Wordwatcher
1 day 20 hrs
  -> Thanks, Ian, also for the wording, albeit I had been teetering on factually vs. mentally, ha, ha deficient.
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1 day 9 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): -1
to lack supporting evidence


Explanation:
In the example of legal proceedings a translation which stays as close to the original text as possible seems to be the best option, but 'en fait' would be 'indeed' or 'in fact' while 'manquer, is 'to lack' or 'to miss'. Since it's a judicial issue 'supporting evidence' seems to fit in the sentence instead of 'in fact' or 'indeed'.

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Note added at 3 days 8 hrs (2020-06-30 21:48:00 GMT)
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"When facts are at issue in cassation proceedings, it is usually alleged that the lower court whose judgment is under appeal failed to appraise the facts of the case correctly. In this case it is clear that the court of appeal is not considering the facts but is appraising the 'pleas in appeal' and finding that they are factually incorrect. This is remote from any examination by the facts by the Court of Appeal The public limited company further submits that the pleas in appeal are inadmissible on the ground that the appelant in cassation (appeal) criticised the judge, called on to adjudicate solely on admissibility, or failing to carry out a substantive examination of the dispute; a plea is factually defective when it purports to say that a judicial decision says something which it did not in fact say." (Wordwatcher)

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Note added at 3 days 9 hrs (2020-06-30 22:12:30 GMT)
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According to 'jurisconsulte.net', the slightest factual inaccuracy, once brought forth to an administrative judge may be considered as non-existent information, and, indeed, the slightest factual inaccuracy, following examination of the case, allows an administrative judge to reject the case.

Example sentence(s):
  • Attendu qu'un moyen manque en fait lorsqu'il fait ....Attendu que le reproche fait en droit au juge d'appel de ne pas avoir procédé a un examen du fond ne constitue pas un manque en fait.
  • Given that a method lacks supporting evidence when he does ... Given that the reproach makes an entitlement to a judge of appeal without having proceeded to an essential examination does not constitute a short-fall, indeed.
Lisa Rosengard
United Kingdom
Local time: 19:56
Native speaker of: Native in EnglishEnglish

Peer comments on this answer (and responses from the answerer)
disagree  Daryo: but 'en fait' would be 'indeed' or 'in fact' ??? definitely NOT in this text ..// In fact, the ONLY bit you got right (sort of) is "the appeal judge"!
22 hrs
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Reference comments


23 mins peer agreement (net): +1
Reference: manquer en fait fwiw/fyi

Reference information:
https://www.proz.com/kudoz/french-to-english/law-general/772...
Moyen manquant en fait

Le « moyen manquant en fait » est un moyen soulevé par les parties devant le juge administratif, qui invoque un ou des faits qui sont matériellement inexistants. Par exemple, dans l’arrêt Conseil d'Etat, 3 / 6 SSR, 2 octobre 1968, ville du Vésinet, requête n° 73331, publié au Recueil Lebon, le Conseil d’Etat indique que « (…) si les requérants allèguent subsidiairement devant le Conseil d’Etat, que le permis de construire susmentionné autoriserait la construction d’un bâtiment d’une hauteur supérieure à celle qui est fixée par le cahier des charges du 10 mai 1863 fixant les conditions spéciales imposées aux acquéreurs de lots dans le parc du Vésinet, il résulte de l’instruction que ledit cahier des charges ne contient aucune disposition relative à la hauteur des bâtiments d’habitation ; qu’ainsi en tout état de cause, le moyen susinvoqué manque en fait.(…) ». Il suffit ainsi que le concluant en réponse ou en réplique indique dans son mémoire que le moyen manque en fait pour que le juge administratif puisse, après un examen attentif, le rejeter.
https://www.jurisconsulte.net/fr/lexique/id-243-moyen-manqua...

https://blogavocat.fr/space/andre.icard/content/quand-le-moy...

writeaway
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 617

Peer comments on this reference comment (and responses from the reference poster)
agree  AllegroTrans
4 hrs
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