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 BY THESE PRESENTS” (typically in all capitals). And, yet again, we’re looking at a phrase that often gets translated literally into other languages (i.e. through formal equivalence); a translation method that, if you’ve been paying attention to everything I’ve ever written in this blog, I rarely ever recommend.
In Spanish (one of my working languages), good legal translators who want to avoid literality will typically use phrases like sabed or conste or even hágase saber por la presente, which are OK enough, except for one thing: with the exception of sworn public translations or other certified translations in which you are legally required to translate every single word for legal purposes, this particular archaism needs not be reflected in translation. Why? Because it serves no purpose in the source text!
According to Adams, “[o]ccassionally the introductory clause is itself introduced by the egregiously archaic know all men by these presents, usually in all capitals. It’s a stodgy translation of the Latinism noverint universi, meaning “know all persons.” It means, in effect, “take notice,” and as such it serves no purpose other than to mark the drafter as someone in thrall to the archaic.” (Adams, Ken. A Manual of Style for Contract Drafting, 3rd edition, pg. 13.)
It isn’t the first time we discuss archaisms on this blog. Our rule of thumb is not to reflect them in translation (except in the cases stated above). And on that note, I’d like to leave you with the words of Bryan Garner: “Before putting such words on paper, question your own motives. Are you really expressing yourself, or are you just trying to impress someone?” (Garner, Bryan. The Elements of Legal Style, pg. 197.) Translators write to communicate someone else's message effectively. And sometimes, to do so, there are a few things we need to lose in translation. Archaisms that serve no purpose and only add confusion are precisely the kind of thing we can drop, even as secondary drafters.