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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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Principio General: Principle or Rule?

In the Latin American Civil Law world there is a little something called principios generales, which are often problematic in translation for more reasons than one. When transferring these “principles” into English, many legal translators resort to formal equivalence (i.e. word-for-word translation), forcing English speaking lawyers to try to decipher very foreign concepts like principle of procedural acquisition (say what, now?).

I. Understanding principios generales

Essentially, there are two kinds of principios generales: principios generales de derecho and principios generales del derecho procesal. Similar to the general principles of law of the International Law system, principios generales de derecho are the principles or rules behind the content of the law (which, to this day, many legal scholars still argue are “moral” principles). They should never be confused with principios generales del derecho procesal, which are rules of civil procedure aimed,...

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Balancing Fidelity and Transparency: Formal Equivalence

What are we talking about when we talk about formal equivalence? According to Harvey, formal equivalence or ‘linguistic equivalence’ means a ‘word-for-word’ translation. Using examples from French into English, Harvey holds that authors differ over the acceptability of formal equivalence, but still maintain that formal equivalence is the dominant method in legal translation; which “[i]deologically speaking […] is in keeping with the dogma, long imposed on legal translators, of literal translation or adherence to the letter rather than the spirit” (Harvey 2002).

Harvey’s examples are not original. Citing other authors, he exemplifies formal equivalence with “Conseil constitutionnel = Constitutional Counsel” (Cairns and McKeon 1995) and “notaire = notary” (Dickson 1994) (for an analysis of how this second example fails between Spanish and English, see (Arturo 2019)). But aside from lacking in originality,...

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Translation Methodologies

Uncategorized Mar 15, 2019
 

A little peek at one of the videos from our Comparative Law for Serious Legal Translators course. Registration to that course is closed, but don't worry, we have more courses coming soon! 

 

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Balancing Fidelity and Transparency: Introducing a New Post Series

According to both Mellinkoff and every experienced legal translator and/or lawyer-linguist everywhere, legal discourse is formulated in a specific language or sublanguage that is known as “the language of the law” (Mellinkoff 1963). Like all other languages, the language of the law has its own syntactic, semantic, and pragmatic rules which form basic means of communication between legal actors. Because of that, the language of the law is considered by linguists to be a Language for a Specific Purpose (LSP); however, it is unique and different from other LSPs in that, unlike other technical language which is typically universal, the language of the law is the product of specific historical and cultural events that vary significantly from one jurisdiction to another.

All languages serve the obvious function of communication. And, needless to say, so do LSPs. But the language of the law serves two main additional functions: one regulatory and the other informative. This...

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Five Reasons to Avoid Latin in Legal Translation

 “Write in English,” advises Bryan Garner in The Elements of Legal Style, doing so, he claims, will have at least three advantages:

“First, you’ll succeed in communicating. No one benefits from a conclusion stated in this way: ‘Parens patriae cannot be ad fundandam jurisdictionem. The zoning question is res inter alios acta.’

Second, you’ll constrict that ‘marvelous capacity of a Latin phrase to serve as a substitute for reasoning.’ Third, you won’t embarrass yourself with a pretentious blunder, as by writing corpus delecti in place of the correct phrase corpus delicti: you’ll neither show yourself to be a lack-Latin nor unwittingly arouse necrophiliacs.”

I would argue that the same applies to legal translation. There is a somewhat lazy tendency to reflect Latin in translation, even when translating into Romance languages.

“But we have to reflect what the source text says,” argue many legal...

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Law Across the Pond: Three ways U.S. and U.K. law and legal terminology differ

There is a very common misconception that, other than pronunciation and spelling of some specific words, there aren’t really that many differences between the English spoken in the United States and that spoken in the U.K. There is another equally common misconception that because both the U.S. and the U.K. are Common Law countries, the law is pretty much the same on either side of the pond. Nothing could be further from the truth. And these misconceptions can result in dire mistranslations.

American Common Law is of course rooted in English Common Law, but the post-revolutionary split between England the United States meant that American Common Law and English Common Law evolved as two distinct systems within the same legal tradition.

We could write a book (or two) on the differences between English and American law today. Not only that, we could write a book (or a gazillion) on variations in legal terminology between the U.K. and the U.S., but this is a blog post and blog...

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