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Our Book of the Month is....

Uncategorized Jul 10, 2019

Hi there, Book Club Members!

Our Book of the Month is The Concept of Law by HLA Hart. 

Our meeting date will be set by July 16, 2019. So be sure to check back soon! 

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On the real meaning of WITNESSETH


WITNESSETH is another common word that often gets lost in translation. As always, context is king. And today we're going to focus on the word WITNESSETH in the context of contract recitals.

Common Law contracts will usually have one of three kinds of recitals:

1) Context recitals: which describe the circumstances leading up to the contract.

2) Purpose recitals: which state what the parties intended to achieve with that contract.

3) Simultaneous transaction recitals: which tell us about the broader, relevant transactions that are taking place concurrently with the contract. 

Enter WITNESSETH (typically in bold, capital letters). While most legal translators believe that the word WITNESSETH indicates that someone is witnessing or stating that they have witnessed a relevant part of the execution of the contract, nothing could be further from the truth. 

According to Adams:

A traditional choice of heading is WITNESSETH. It's ludicrously archaic and is premised...

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Execute and Deliver


Neither execute nor deliver are problem words in translation – at least not when found separately. Execute will typically mean one of two things:

1) to have a contract signed by someone with authority to do so; or

2) to perform or complete a contract or duty.

Deliver, when found alone, will also either indicate one of two things:

1) that an instrument is to be physically delivered (i.e. to take or hand over to someone); or

2) nothing at all.

Allow me to elaborate on this latter point. In concluding clauses of contracts that will not actually be physically delivered, the word delivered is just a fossilized term. It’s something we continue to write in our contracts even though times have changed and the entire transaction may be done online. And, of course, that’s where the translation problem originates.

Let’s look at the following example:

This agreement and the New Warrants have been duly executed and delivered by the Company.

As Adams points out, this is...

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The Hidden Meanings of "May" in Contract Translation


According to Merriam-Webster, in its auxiliary function, “may” can express several things:

• wish or desire, particularly in prayer, imprecation, or benediction (“may the best man win”);

• purpose or expectation (“I laugh that I may not weep”);

• contingency (“he may be slow but he is thorough”);

• choice (“the angler may catch them with a dip net, or he may cast a large, bare treble hook”);

• may or must (“in law and contracts”).

While most of these uses are pretty straightforward, in contracts, “may” can sometimes be ambiguous and hard to translate. If unfamiliar with the multiple categories of language with which “may” is used in Common Law contracts, legal translators may mistranslate the term as if it always meant to express that something might come to pass (i.e. to express possibility, when what it is actually expressing is discretion).

When Does...

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Come Hell or High Water


If, like me, you work in a Spanish speaking Civil Law country with Common Law contracts, you may come across Hell or High Water as a clause, provision, obligation, contract, or covenant. For the purposes of this post, we’ll focus on Hell or High Water Clauses.

What is a Hell or High Water Clause?

Hell and High Water clauses are commonly found in leasing agreements and basically contain an independent and absolute contractual obligation of a party that is non-cancellable, unconditional and not subject to any right of set-off, rescission, counterclaim, off-set, reduction or recoupment during the non-cancellable term of the agreement.

For example, in an equipment lease, it may require the lessee to continue making rent payments to the lessor even if there are defects in the leased equipment. In leveraged lease transactions, it may obligate the lessee to make all rental payments with respect to the leased property, regardless of any...

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When Mistranslations Lead to Notary Fraud


Everybody in the U.S. has at least a vague notion of what a Notary Public is. Black’s Law defines a Notary Public as: “[a] person authorized by a state to administer oaths, certify documents, attest to the authenticity of signatures, and perform official acts in commercial matters, such as protesting negotiable instruments.” It then continues: “in countries where civilian law prevails, such as in countries of continental Europe, a notary public is a public official who serves as a public witness of facts transacted by private parties… and also serves as impartial legal advisor for the parties involved.”

Notary Public is often (incorrectly, in my view) translated into Spanish as “notario,” “notario público,” or “escribano.” And it is precisely in translation that this term gets interesting, specifically when we look at the differences between a US Notary Public and a Latin American “Notario...

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The Signing and Performance Date Conundrum in Contract Translation


Dates, believe it or not, are not necessarily a simple thing to translate. First, there’s the matter of convention. If you’re translating into English, for example, the U.K. and the U.S. use different formats. While American lawyers are used to seeing the month-day-year format (as in May 20, 2019), their counterparts on the other side of the pond are far more accustomed to the day-month-year format (as in 20 May 2019). And if you’re working into other European languages, you may want to use the day-month-year format as well, but what if that language is Spanish? Spaniards are used to the European way, as are Argentinians, but Mexicans are used to the American way. The rule of thumb then in contract translation is that dates should be localized. Easy-peasy, right, provided you know where the contract is going to be used, which is information translators don’t always have access to, especially when they work with agencies or large LSPs.

But that’s not the...

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Translating Problem Phrases: Know All Men by These Presents


Most contracts drafted in the Common Law world include an introductory clause after the title. The introductory clause typically states, at least, three things: 1) the type of agreement involved, 2) the date of the agreement (which as we’ll learn in next week’s post and quick tip isn’t always as straightforward as it should be), and 3) who the parties to the agreement are.

The introductory clause can be simple. Like this:

This sales agreement is made on May 13, 2019 between Acme Corp. and Roadrunner Corp.

Or it can be a little more sophisticated. Like this:

This asset purchase agreement is dated May 13, 2019, and is between ACME CORP., a Delaware corporation (“Acme”) and ROADRUNNER CORP., a New Mexico corporation (“Roadrunner”), and Wile E. Coyote, an individual (“Mr. Coyote”; together with Roadrunner, the “Roadrunner Parties”).

Near the introductory clause, you’ll often find the phrase “KNOW ALL MEN...

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Unraveling the problem phrase "without regard to conflicts of laws principles"

Uncategorized May 06, 2019

Many legal and linguistic problems arise when we translate across legal systems, not the least of which is that the same concept may have radically different implications between our source and target countries. One such concept is renvoi, a word that rarely ever explicitly creeps up in translation, but is all over contracts nonetheless, typically in contracts.

Renvoi is not, in itself, a problem word in translation—at least not when the source text explicitly uses the word renvoi. Black’s Law defines renvoi as “a doctrine under which court in resorting to foreign law adopts rules of foreign law as to conflict of laws, which rules may in turn refer court back to law of forum.”

The clearest example of renvoi I can think of is in Tina L. Stark’s Negotiating and Drafting Contract Boilerplate § 6.02[3]:

 “The following would be an example of renvoi: a party brings suit in a court in California, with respect to a contract with a New...

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What Translators Can Learn from the “Untranslatability” of Punitive Damages

Punitive damages (a.k.a. exemplary, vindictive or imaginary damages) is a problem term in some, but not all, language combinations. This is so because, legally speaking, punitive damages don’t exist in every country.

In my language combination (EN-ES), the concept of punitive damages exists linguistically, but not legally, throughout the Spanish speaking world. So, for example, while punitive damages have long been awarded by the Courts in Mexico, Venezuela, and Puerto Rico, it wasn’t until the new Civil Code was sanctioned in 2015 that punitive damages were explicitly addressed in Argentine law. So, for a long time, those of us who practice law in Argentina had a word for something that existed conceptually, but not legally. We talked about it. We theorized about it. But no court could award punitive damages because, technically speaking, they didn’t really “exist” under Argentine law.

Recently a student in my Comparative Law course contacted me with a...

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