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...
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...