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 equivalence if the target country is Argentina, where trusts are known as fideicomisos and (to some extent) mirror American trusts, but little or no legal-linguistic equivalence if the target locale is Spain where, legally speaking, trusts are a completely foreign beast.
Translation tip: When translating contracts from English to Spanish, always ask your client what the target country is. Then look up relevant statute law from the target country that can give you a feel for the terminology your target readers are used to seeing.
Part 2: The Introductory clause
The introductory clause contains information aimed at contextualizing the contract. In English, it will typically have fossilized language that should NEVER be translated word-for-word, because literal translations will most likely be nonsensical.
A typical example is the phrase “know all men by these presents.” A literal translation in Spanish, such as “se hace saber a los que la presente vieren” is faithful in the sense that it arguably reflects the words in the source text, but has very little value in terms of meaning.
That’s because “know all men by these presents” is already a poor English translation of the Latinism noverint universi, which means “know all persons” and is actually just a really archaic way of saying “take notice.” This phrase normally serves no real purpose and can often be omitted in translation.
Translation tip: Talk to your client about dropping archaisms if they serve no specific legal purpose. But if your client insists on keeping them, then translate meaning, not words.
Part 3: Recitals
Recitals will often contain language that has no equivalence in the civil law world (such as the consideration requirement). They give background information that the parties see as relevant and can usually be classified as context recitals, purpose recitals, and simultaneous transaction recitals. Like the introductory clauses described above, they may also contain archaic language that should not be translated literally.
For example, the phrase “Now, therefore, in consideration of the premises…” is really just obscure lawyer-speak for “therefore.” So a literal word-for-word translation of this archaic phrase usually results in over-translation.
Translation tip: To better understand archaic language in contract recitals, check out A Manual of Style for Contract Drafting by Ken Adams and Garner’s Guidelines for Drafting and Editing Contracts.
Part 4: The Lead-In
The lead-in introduces the body of the contract and should always be translated using language of agreement, not language of performance.
Translation tip: Contract drafters often misuse the word hereby when drafting. There is no need for you to mirror that error in your translation. Instead, flag it for your client and use language of agreement.
Part 5: Cover Sheets, Tables of Content, and Indexes of Defined Terms
Last but not least, contracts that are more than 20 pages long may have cover sheets, tables of content, and indexes of defined terms. This is where most translation errors occur in the form of inconsistencies.
The standard in contract drafting is that every word must carry a single meaning, so when translators don’t watch consistency, they can create problems for their clients.
Translation tip: Make sure your terminology is super consistent throughout the entire contract!