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...
What are we talking about when we talk about formal equivalence? According to Harvey, formal equivalence or ‘linguistic equivalence’ means a ‘word-for-word’ translation. Using examples from French into English, Harvey holds that authors differ over the acceptability of formal equivalence, but still maintain that formal equivalence is the dominant method in legal translation; which “[i]deologically speaking […] is in keeping with the dogma, long imposed on legal translators, of literal translation or adherence to the letter rather than the spirit” (Harvey 2002).
Harvey’s examples are not original. Citing other authors, he exemplifies formal equivalence with “Conseil constitutionnel = Constitutional Counsel” (Cairns and McKeon 1995) and “notaire = notary” (Dickson 1994) (for an analysis of how this second example fails between Spanish and English, see (Arturo 2019)). But aside from lacking in originality,...
I. The Facts of the Case
Imagine you’re driving down the highway in a foreign country and you get stopped by the police. You don’t speak the local language and the officer who stopped you doesn’t speak your language either. The officer takes out his laptop, types something into Google Translate, which then spits out nonsense, and the next thing you know, you’re under arrest.
That’s what happened to Omar Cruz-Zamora on September 21, 2017 when he was stopped by Kansas Highway Patrol Trooper Ryan Wolting. Unable to communicate with Spanish-speaking Cruz-Zamora, and not knowing that his police department had human interpreters available, Wolting used Google Translate to ask for the defendant’s consent to search his car, where he allegedly found methamphetamines and cocaine.
According to the case report: “Wolting testified that there was no department policy against using Google Translate, but admitted a live translator would be more...