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 only complication with dates in contracts. Another more serious issue arises in contract translation when the date of signing and date of performance in a contract differ. If you’re not a lawyer, this scenario may be hard to imagine. Let me give you a hypothetical example. Imagine Acme Inc. signs an employment agreement with Wile E. Coyote on May 1, 2019 whereby Mr. Coyote will start working for Acme Inc. one month later. The drafter of the agreement is going to have to find a way to address the fact that date of signing and date of performance are one month apart. And, in the English-speaking world, drafters tend to get creative when addressing discrepancies between signing and performance date.

One thing they’ll tend to do is include the date of signing in the introductory clause, and then refer to the date of performance as an as of date or effective date or use phrases like dated for reference or dated for reference purposes only. In Spanish, my working language, translators will often render these phrases as fechado, fechado para referencia, fechado únicamente con fines de referencia, and other equally colorful yet totally meaningless word-for-word misses.

Now, what is the right way to interpret these phrases so as to translate them correctly? Well, if in the particular context of differing signing date and performance date the phrases as of date, effective date, dated for reference and dated for reference purposes only are synonyms, then it stands to reason that whatever translation works for the simplest phrase (i.e. effective date) works for the rest. In Spanish, for example, fecha de vigencia is a perfectly accurate translation of all the above phrases.

Cool, so translate it as if it read effective date, right? Sure, but there’s a third problem. Technically speaking, the date of signing is the contract’s effective date and the date of performance is, for lack of a better term, just the start date. This is so because, according to Adams, the contract is legally effective on the date it’s signed, regardless of when it will be performed. As translators, of course, we can always flag this for our clients. However, in my nearly two decades’ experience, I’ve found that drafters don’t always agree with Adams on this one and are often reluctant to adjust the source text.

Translation tip: If in the particular context of differing signing date and performance date the phrases as of date, effective date, dated for reference and dated for reference purposes only are synonyms, then the translation that works for the simplest phrase (i.e. effective date) works for the rest.

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