Two weeks ago, I published a post on using will and shall in dual language or translated contracts. The post caught the attention of fellow lawyers and translators alike, resulting in many interesting exchanges and debates. Some in my comments section, others via private message or email. I’m always open to such exchanges and grateful to every reader who reached out. In particular, my post led to a very interesting exchange with a legal translation professor on the other side of the pond who wrote to me about the challenges of finding adequate teaching material to illustrate how to apply certain concepts to translation. As a former Law Professor in Argentina, I can relate to the challenge of having to teach without the necessary resources.
Long before I ever went to law school, when I was still an aspiring young translator, I worked in-house at a translation agency where my boss taught me her golden rule of translation: for every linguistic decision you make, you have to be able to explain the reasons for your choices. To her, all else being equal, “this just sounds better” was no justification for ever choosing one linguistic option over another. You are accountable to your client. That means that if your client comes back with questions or challenges your choices, you need to be able to explain or justify them.
Her rule stuck with me and, over 15 years later, I still apply it when drafting contracts of my own or translating contracts by other legal practitioners. However, since then, I’ve developed a few rules of my own.
Building on the general guidelines outlined by leading authors such as Adams and Garner, I’ve developed my own techniques for working with dual language or translated contracts. In this post, I will illustrate one such technique. The purpose of this post, therefore, is twofold: to show how I apply categories of language to dual language or translated contracts and to illustrate that pretty much any monolingual manual, style guide, linguistic theory or approach can be applied to translation.
I. Getting Started: Identifying Categories of Language
The first question I ask myself when drafting or translating a contract provision is what purpose it is intended to serve. This isn’t so much a linguistic question as it is an ontological one in that you are inquiring about the provision itself, as an independent entity, to identify its properties, which you will later compare and contrast to the properties of other provisions in the contract if necessary. Once you have identified its purpose, you can linguistically classify its language by category. Following Adams (Adams 2013), that would look something like this:
|Purpose of the provision||Category of Language|
|To accomplish an action by means of a speech act||Language of Performance|
|To impose duties on one or more of the parties||Language of Obligation|
|To grant one of the parties discretion as to whether or not to take a specific action||Language of Discretion|
|To prohibit the parties from doing something||Language of Prohibition|
|To impose duties on the parties that do not expressly require action or inaction on their part||Language of Policy|
|To declare facts by means of verbs of speaking||Language of Declaration|
|To state opinions on the legal implications of fact||Language of Belief|
|To address issues that can’t be legally established by the parties in a contract and would ultimately be determined by the courts||Language of Intention|
|To make a recommendation to the other party for the purpose of avoiding dispute||Language of Recommendation|
II. Cheat Sheet: General Principles
It is impossible to provide a comprehensive guide to applying categories of language to dual language, multilingual or translated contracts in just one blog post. However, the general principles outlined below are a good place to start. If you’re willing to put in the hard work, these principles can easily be developed into your own personal comprehensive style guide. I’ve been developing one for myself for some time and have found the process itself quite rewarding. I now better understand some of my own linguistic preferences and can more effectively explain why certain choices “just sound better” than others.
|Category of Language||General Principles*||Example|
|Language of Performance||Tense: simple present (except future performance)
Useful words: hereby
Red flags: shall, unconditionally, absolutely, forever
|Roadrunner hereby leases to Wile E. Coyote the premises described in paragraph X below (the “Premises”).|
|Language of Obligation||Tense: avoid simple present
Voice: passive + shall for obligation or active + must
Useful words: shall to mean ‘has to’ only, must to replace shall, when applicable
Red flags: agrees to, undertakes to, promises to, covenants to, commits to + gerund, shall be obligated to, receive, is entitled to, covenant
|Wile E. Coyote must pay Roadrunner a monthly rent of $X.|
|Language of Discretion||Tense: present
Useful words: may, is entitled to, is not required to
Red flags: at its sole discretion, hereby grants […] the right to
|If Roadrunner does not receive rent payment from Wile E. Coyote by [date], Roadrunner may asses a late charge of $X per day for each day the rent remains unpaid.|
|Language of Prohibition||Tense: future
Useful words: shall not or must not
Red flags: may not, shall refrain from
|Wile E. Coyote must not make permanent structural changes to the Premises without prior written consent from Roadrunner.|
|Language of Policy||Tense: present tense, conditional using present tense or present perfect, future using will
Red flags: language of obligation
|This agreement terminates on [date].|
|Language of Declaration||Tense: present
Useful words: states, acknowledges
Red flags: misapplied terms of art (esp. represents and warrants), rhetorical emphasis
|Roadrunner states, as of the Commencement Date, that: (a) the Premises are in compliance with all Applicable Laws; (b) the Premises are in good and proper working condition and free from any material defects.|
|Language of Belief||Tense: present
Useful words: believe
Red flags: categorical phrasing
|Roadrunner believes that no property taxes are due on the leased Premises.|
|Language of Intention||Tense: present
Useful words: intend
Red flags: language of obligation, shall be construed
|The parties intend as follows: (a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified as necessary to make it enforceable.|
|Language of Recommendation||Tense: present
Useful words: recommends
Red flags: shall and may
|Roadrunner recommends that Wile E. Coyote consult with his or her personal legal adviser if he or she is unsure whether X rules apply to this lease.|
* Every rule has its exception, so one must exercise caution and good judgment before taking these general principles to heart.
III. Applying Categories of Language to Dual-Language, Multilingual or Translated Contracts Going into English
Once you have identified the purpose of a provision and its category of language, you can begin to use grammar for meaning and clarity. One of the most common errors I find in my line of work (especially when asked to revise dual language or multilingual contracts) is an excessive and awkward use of shall for provisions that make no sense as an obligation or a prohibition. But this mistake is easily avoidable if, as a drafter or translator, you stop to think about the purpose the provision is serving.
Example 1: Language of Declaration
|Spanish Source Text:||El edificio se encuentra ubicado en [address].|
|Original Translation:||The building shall be located in [address].|
|The Problem:||You don’t need to understand Spanish to know that the original translation shown above was incorrect and needed revision. All you need to do is ask yourself the purpose of the provision in question. In the context of a Lease Agreement, when you are referring to the location of the premises, you are obviously stating a fact, i.e. where the building is located.|
|Revised Translation:||The building is located at [address].|
Example 2: Language of Declaration
|Context:||Sale of Real Estate|
|Spanish Source Text:||La parte vendedora manifiesta que el bien inmueble se encuentra libre de cargas e impuestos.|
|Original Translation:||The Selling Party warrants and represents that the immovable property is free and clear of liens and charges.|
|The Problem:||First, there is the matter of suitability for purpose of the contract as a whole. The original contract was drafted in Spanish, specifically in Argentina. The parties were an Argentine seller and an American buyer. Neither the buyer nor the seller were legal professionals; and, under Argentine law, the sale of real estate is pretty straightforward. In addition, the translated version was just a formality for the American buyer to understand what he was getting himself into. The parties had agreed that if a dispute were to arise, the Spanish version would prevail because the contract was subject to Argentine law anyway. With all this in mind, there is no reason to drown the English version in legalese.
Second, there is the matter of suitability for purpose of the provision in question. The seller in this case is simply declaring something: i.e. that the property is clear of liens and charges.
|Revised Translation:||The Seller states that the property is clear of liens and charges.|
|Notice the following changes:||1) Changing Selling Party to Seller: Why? Because a basic principle of good legal writing is to omit unnecessary words (Garner, Legal Writing in Plain English 2013). There is a word in English for the selling party. That word is seller.
2) Replacing warrants and represents with states: Why? First, because the intended users are not legal professionals, which is a strong argument against legalese. Second, because the purpose of the provision is “to declare facts by means of verbs of speaking.” What this means is that the drafter doesn’t just want to assert a fact, they want to make sure it’s clear that the seller is the one asserting that fact. This places us in the realm of Language of Declaration in Adams’s terms or Statements of Fact in Garner’s terms. Both authors agree that the best way to go is simply to use the word states for its precision. After all, stating is exactly what the seller is doing here. So, the golden rule is to use strong, precise verbs when such verbs exist.
3) Replacing free and clear of with just clear of: In all fairness, this could have gone either way. I could have rephrased it as either free of or clear of. The point is simply to remove one of the two options when they both essentially mean the same thing. This falls under Garner’s recommendation to avoid duplets and triplets.
Example 3: Language of Discretion
|Spanish Source Text:||Acme conserva la discreción exclusiva de cancelar o suspender el servicio, en cualquier momento, por incumplimiento de pago.|
|Original Translation:||Acme retains the sole discretion to cancel or suspend the service due to failure to pay.|
|The Problem:||This is obviously language of discretion that was translated (awkwardly) into English. For reasons of simplicity and clarity, both Garner and Adams recommend using “may” to indicate discretion. In addition, “the sole discretion” is unidiomatic in English and reveals a language transfer in which the English text is actually reflecting Spanish use of definite articles and nouns. Meanwhile, “conserva la discreción exclusiva” is equally unidiomatic in Spanish. The client latter revised the source text to: “Acmé podrá, a su entera discreción […].”|
|Revised Translation:||Acme may, at its sole discretion, cancel or suspend the service at any time for nonpayment.|
|Notice the following changes:||I changed “failure to pay” to “nonpayment” because another principle of good contract drafting is to use a single, precise word when one is available. Why use three words to say something you can express clearly with just one? (For more on this, see Garner, op. cit.)|
These three brief examples are far from comprehensive, but for the purpose of this post, I think they paint a pretty clear picture of how to apply categories of language when working from any language into English.
IV. Applying Categories of Language to Dual-Language, Multilingual or Translated Contracts from English into Other Languages
Categories of language can be used both into and out of English. When working from English into other languages, poorly drafted source clauses can often infect the translated version as well.
Example 1: Language of obligation
|English Source Text:||The Interpreter is entitled to be reimbursed for all authorized expenses.|
|The Problem:||In this sentence, “is entitled to” meaning “has a right to” is being used with a passive complement clause in which it is implicit that someone is required to provide what the subject is entitled to. However, in practice, it is unclear who has the obligation to reimburse the interpreter. If there are several parties involved, as was the case in this particular contract, this phrasing could harm the entitled party. (For more on the correct use of “is entitled to,” see Adams op. cit.). In translation into Spanish, for example, a legal translator is likely to translate “is entitled to” literally as “tiene derecho a,” which would cause the same legal issues as it does in the original source language.|
|Possible Solutions:||Because this is language of obligation imposed on someone other than the subject of the sentence, it can be phrased as: “The [insert relevant party] must reimburse the Interpreter for all authorized expenses.” In Spanish, the latter can only be correctly translated in the active voice as well. So, problem solved.|
Example 2: Language of Prohibition
|English Source Text:||Lessee shall refrain from parking in unauthorized areas or in another lessee’s designated parking space.|
|The Problem:||The clause is intended to prohibit the Lessee from doing something. In the full contract, failure to comply with this clause results in a fine. However, as pointed out by both Adams and Garner, when you ask someone to refrain from doing something, you are not really prohibiting them from doing it, you are simply appealing to that person’s ability to control their urge to do something. Their interpretation is consistent with every possible dictionary definition of the word “refrain,” but just for kicks, let’s look at Merriam-Webster, which defines “refrain” as “to keep oneself from doing, feeling, or indulging in something and especially from following a passing impulse.” Obviously, if we intend to fine someone for non-compliance, we are doing a lot more than just asking them to kindly control their urges. Therefore, we are in the realm of language of prohibition.
If you were to translate this phrase into Spanish, for example, any possible translation of “refrain from” would have several problems: First, any literal translation of “refrain from” would be highly unidiomatic. Thus, fidelity to source on the part of the translator would sound awkward to legal practitioners working with the contract in Spanish. Second, Spanish is very straightforward when it comes to language of prohibition. Beating around the bush to accommodate the English phrasing would raise all sorts of interpretation issues if any claims were brought before the courts by any of the parties involved: Was it the intention of the drafter to beat around the bush with what should otherwise have been a very simple transaction under applicable law? The answer to that question has all sorts of legal implications.
|Possible Solutions:||Why not use “must not”? “Lessee must not park in unauthorized areas or in another lessee’s designated parking space.” This option is clear and to the point in English, and any possible translation will reflect that clarity and precision, provided the translator is faithful to source.|
V. In Conclusion
I know that most of my readers are not necessarily fluent in Spanish, which I why I wanted to focus on the forest and not the tree. The above examples are simply intended to illustrate that any legal complications which may arise from incorrect or odd phrasing in the English version of a contract can easily find their way into all other versions in other languages as well. Of course, the same goes for contracts going out of other languages into English. However, working with categories of language when drafting helps prevent those issues. Similarly, working with categories of language when translating can help legal translators identify potential issues, ask the right questions, and help the drafting party improve the linguistic quality of the source contract while ensuring utmost linguistic accuracy in the translated contract at the same time.
Adams, Kenneth A. 2013. Manual of Style for Contract Drafting. Chicago: American Bar Association.
Garner, Bryan A. 2013. Legal Writing in Plain English . Chicago and London: The University of Chicago Press.
—. 2002. The Elements of Legal Style. New York: Oxford University Press, Inc.
Very special thanks to my friend and colleague Ana Gauz for her insights and feedback while I was writing this post.