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On the real meaning of WITNESSETH

 

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...

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Execute and Deliver

 

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...

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The Hidden Meanings of "May" in Contract Translation

 

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).

When Does...

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Come Hell or High Water

 

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...

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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...

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Translating Problem Phrases: Know All Men by These Presents

 

Most contracts drafted in the Common Law world include an introductory clause after the title. The introductory clause typically states, at least, three things: 1) the type of agreement involved, 2) the date of the agreement (which as we’ll learn in next week’s post and quick tip isn’t always as straightforward as it should be), and 3) who the parties to the agreement are.

The introductory clause can be simple. Like this:

This sales agreement is made on May 13, 2019 between Acme Corp. and Roadrunner Corp.

Or it can be a little more sophisticated. Like this:

This asset purchase agreement is dated May 13, 2019, and is between ACME CORP., a Delaware corporation (“Acme”) and ROADRUNNER CORP., a New Mexico corporation (“Roadrunner”), and Wile E. Coyote, an individual (“Mr. Coyote”; together with Roadrunner, the “Roadrunner Parties”).

Near the introductory clause, you’ll often find the phrase “KNOW ALL MEN...

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What Translators Can Learn from the “Untranslatability” of Punitive Damages

Punitive damages (a.k.a. exemplary, vindictive or imaginary damages) is a problem term in some, but not all, language combinations. This is so because, legally speaking, punitive damages don’t exist in every country.

In my language combination (EN-ES), the concept of punitive damages exists linguistically, but not legally, throughout the Spanish speaking world. So, for example, while punitive damages have long been awarded by the Courts in Mexico, Venezuela, and Puerto Rico, it wasn’t until the new Civil Code was sanctioned in 2015 that punitive damages were explicitly addressed in Argentine law. So, for a long time, those of us who practice law in Argentina had a word for something that existed conceptually, but not legally. We talked about it. We theorized about it. But no court could award punitive damages because, technically speaking, they didn’t really “exist” under Argentine law.

Recently a student in my Comparative Law course contacted me with a...

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Principio General: Principle or Rule?

In the Latin American Civil Law world there is a little something called principios generales, which are often problematic in translation for more reasons than one. When transferring these “principles” into English, many legal translators resort to formal equivalence (i.e. word-for-word translation), forcing English speaking lawyers to try to decipher very foreign concepts like principle of procedural acquisition (say what, now?).

I. Understanding principios generales

Essentially, there are two kinds of principios generales: principios generales de derecho and principios generales del derecho procesal. Similar to the general principles of law of the International Law system, principios generales de derecho are the principles or rules behind the content of the law (which, to this day, many legal scholars still argue are “moral” principles). They should never be confused with principios generales del derecho procesal, which are rules of civil procedure aimed,...

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Law Across the Pond: Three ways U.S. and U.K. law and legal terminology differ

There is a very common misconception that, other than pronunciation and spelling of some specific words, there aren’t really that many differences between the English spoken in the United States and that spoken in the U.K. There is another equally common misconception that because both the U.S. and the U.K. are Common Law countries, the law is pretty much the same on either side of the pond. Nothing could be further from the truth. And these misconceptions can result in dire mistranslations.

American Common Law is of course rooted in English Common Law, but the post-revolutionary split between England the United States meant that American Common Law and English Common Law evolved as two distinct systems within the same legal tradition.

We could write a book (or two) on the differences between English and American law today. Not only that, we could write a book (or a gazillion) on variations in legal terminology between the U.K. and the U.S., but this is a blog post and blog...

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