Whether we realize it or not, we enter into contracts every single day. Our contractual transactions are more obvious to us when we actually sign an agreement or click “Agree” on an online adhesion contract than in other more passive contractual transactions, but they are contracts non the same. Basically, every single time a promise is a made which can be enforced by law, we’re looking at a contract. In fact, the word contract is defined as:
A promise or set of promises by a party to a transaction, enforceable or otherwise enforceable at law; the writing expressing that promise or set of promises.
We can infer two things from the above definition. First, that a legally enforceable promise is a contract. Second, that in English, we use the word contract to refer both to the abstract enforceable promise and to the actual document people sign (or click on). But the matter is even more complex than that:
The term contract has been used indifferently to refer...
“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...
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...
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...
Many legal and linguistic problems arise when we translate across legal systems, not the least of which is that the same concept may have radically different implications between our source and target countries. One such concept is renvoi, a word that rarely ever explicitly creeps up in translation, but is all over contracts nonetheless, typically in contracts.
Renvoi is not, in itself, a problem word in translation—at least not when the source text explicitly uses the word renvoi. Black’s Law defines renvoi as “a doctrine under which court in resorting to foreign law adopts rules of foreign law as to conflict of laws, which rules may in turn refer court back to law of forum.”
The clearest example of renvoi I can think of is in Tina L. Stark’s Negotiating and Drafting Contract Boilerplate § 6.02:
“The following would be an example of renvoi: a party brings suit in a court in California, with respect to a contract with a New...