“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 following example from a Spanish to English translation and try to find what’s wrong with it (believe me, you don’t need the source Spanish text to see it if you’re reading critically):
Upon a material breach of this Agreement by Licensee, Licensor may give notice to Licensee of such breach. If Licensee fails to cure such breach within sixty (60) days of such notice, then this Agreement may be terminated by Licensor at any time during the period that begins on the sixtieth (60th) day following such notice and ends on the ninetieth (90th) day following such notice (the “Licensor Termination Period”) by giving written notice of such termination to Licensor before the expiration of the Licensor Termination Period. Licensor’s failure to terminate this Agreement during the Licensor Termination Period will constitute a waiver of Licensor’s rights to terminate this Agreement by reason of the applicable breach.
If you were reading critically, you probably wondered why the licensor would give him/herself written notice of termination. So where this translation currently reads:
[…] If Licensee fails to cure such breach within sixty (60) days of such notice, then this Agreement may be terminated by Licensor […] by giving written notice of such termination to Licensor before the expiration of the Licensor Termination Period.
It should actually read:
[…] If Licensee fails to cure such breach within sixty (60) days of such notice, then this Agreement may be terminated by Licensor […] by giving written notice of such termination to Licensee before the expiration of the Licensor Termination Period.
This is a common translation error known as party swapping and should be avoided at all costs. So how do you avoid it? Here are some translation tips:
II. Avoid Inconsistent Usage
In non-technical translation, varying terminology can be desirable for elegant variation (i.e. for avoiding redundancy or repetition). In legal translation, however, words must be used consistently to express a single idea.
This is due to a canon of construction known as the presumption of consistent usage by which courts will presume that any change in wording signals an intentional change in meaning.
For translators, this means that if your client used a specific word throughout a contract, your translation has to be equally consistent, you can’t use synonyms to translate that word for the sake of elegant variation. Doing so means doing your client a disservice that could have dire consequences in court.
Look at the following example from a Spanish to English translation:
Accordingly, each party agrees that any violation will cause irreparable injury to the other party and that, in addition to any other available remedies, the injured party shall be entitled to seek relief against the breach.
For the sake of brevity, believe me when I tell you that both instances of the bolded text read violación in the original source text. By translating violación inconsistently, the translator is inadvertently adding meaning to the text and being unfaithful to source. A court could easily wonder whether the parties intended to use both terms and if so what they were trying to achieve with that terminology. While this particular example has not, to my knowledge, been litigated, others have (see Garner, op. cit. pg. 20) and the last thing we want as translators is for our clients to end up in court on the count of our sloppiness!
Translation tip: Keep your translation consistent, even if it renders the text monotonous!
III. Stick to normal syntax
Legal language is highly technical and when a term of art exists to convey a certain idea, by all means, use it. But many translators confuse the awkward syntax that unfortunately permeates legal writing with desirable legalese.
Unnecessary Lawyer-speak like “anything herein to the contrary notwithstanding” can easily be replaced with normal English usage such as “despite anything in this Agreement to the contrary,” without anything being lost in translation.
Translation tip: Read your translation out loud. Listen for awkward syntax and replace it with normal target language usage.