“Read drafts critically—even hypercritically,” writes Bryan Garner in his Guidelines for Drafting and Editing Contracts. Sound advice for primary drafters, but I’d argue the same advice applies to translators as secondary drafters. Where Garner advises lawyers to “[b]e sure you’ve actually said what you mean to say,” I’d advise translators to be sure you’re reflecting what your client actually meant to say, which is not always an easy feat. Rendering accurate contract translations means reading the contract critically, even hypercritically, and translating meaning, not words.
When it comes to translation specifically, critically reading your source text will help you better understand what the parties intended to convey, but it can also help you catch many common translation errors when proofreading the final draft of your translation. So here are some tips to achieve just that.
I. Avoid Party Swapping
Look at the...
If you’re a professional translator working between the common law tradition of the United States and the civil law tradition of Spain and Latin America, you’ve probably realized American contracts are much longer than their civil law counterparts.
This is because civil law countries are codified. So when drafting contracts, civil lawyers can incorporate the codes by reference. Common lawyers can do no such thing. Instead, they have to try to foresee every possible scenario that could potentially affect their clients and draft accordingly, which naturally results in longer contracts.
These long common law contracts are typically divided into 5 parts; and each part poses a particular translation challenge.
Part 1: The Title
The title is the first indicator of how much legal and linguistic equivalence we are likely to have in our working languages. For example, a trust agreement between English and Spanish will have a lot of legal-linguistic...
Legal language can be very stiff and is all too often riddled with old-fashioned syntax and antiquated vocabulary. This is, in part, out of tradition. But legal language also typically preserves terms of art that were coined many centuries ago. It does so, because, for legal experts who know exactly what those terms of art mean, they have the advantage of precision and clarity.
The downside, of course, is that when documents are layperson-facing, the reader will be lost. That’s why so many jurisdictions are moving toward plain language for documents that are aimed, not at specialists, but at the general public.
The question, however, is what are translators to do when they come across syntactic oddities arising out of the linguistic stiffness of the law? We know literal translators won’t work.
Think of phrases like witnesseth that. While in many contexts it may mean attests or affirms that, in others, like contracts, it may mean nothing at all and is just there out of...
You may have heard the phrase “standard of proof” or “evidentiary standard” to describe the amount of evidence that is needed to prove an assertion or claim in a trial, be it criminal or civil. But, because what’s at stake in criminal trials is a human being’s freedom or sometimes even their life, criminal trials have a higher standard of proof than civil trials.
In the criminal justice system of the United States, the burden of proof (carga de la prueba) lies with the government. What that means is that it’s the prosecutor, not the defendant, who has to prove its case and the elements of the crime charged. If the prosecutor is unable to meet the standard of proof, then the defendant cannot be convicted.
As a legal translator or interpreter, you’ll typically come across three standards and you need to be careful not to mix them up or use them interchangeably, because they are not mere...
Understanding technical terms in a foreign language is always a great challenge. With increasing collaboration between countries in the commercial and economic industries, the exchange of information flows very quickly.
Imagine a Brazilian doctor who has the opportunity to take a specialization course in an English-speaking country. Studying medical technical terms in English is of paramount importance and may not be easy. The doctor will have to study the meaning of words like head, surgery, scalpel, and other expressions in English. Good dictionaries and reference material are essential. Once the doctor learns these and other key terms in the English language, they are prepared to take medicine lessons in an English speaking country.
Let us now look at the example of a Brazilian lawyer who has the opportunity to take an L.LM. in the United States. Just like the doctor I mentioned in the paragraph above, they will have to study technical language in English, in this case, technical...
If you're one of our many loyal followers, then you know we recently started a Book Club.
The idea behind Book Club is to read about law, language, and translation; and then meet up online once a month and geek out about what we read.
We plan to start with Hart's indeterminacy of language and then work our way up to contemporary authors, all the time exploring the intricate world of law and language.
Our Book of the Month is The Concept of Law by HLA Hart.
Our very first meeting will be on July 31st @ 12:00 pm EST via Zoom.
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Looking forward to seeing you there!
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...
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...
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).
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...