A contract is an agreement between two or more parties that is enforceable by law. Under the common law system, in order to be enforceable, a contract must be valid; and, in order to be valid, it must have the following elements (Downes 1993, Cartwright 2013):
1. Offer (made by the promisor)
2. Acceptance of the offer (made by the promisee)
3. Consideration (which can be in the form of money or a promise to do or refrain from doing something)
4. An intention to be legally bound
5. Capacity of both parties in mind as well as in age
6. Legality of the terms and conditions of the contract
When drafters know there will be multiple versions of a contract in different languages, they tend to add a governing language provision stating that, in the event of translation, the English version prevails. And while that governing language provision solves many problems, it does not necessarily guarantee that all readers understand what they are reading. When a contract is translated into Romance languages for use or reference in Civil Law countries where the elements that render contracts valid differ, problems may arise, the most common of which involves consideration.
Why does consideration get mistranslated?
In most Civil Law countries, contracts don’t have to be supported by consideration to be enforceable. Instead, those of us who practice law in such countries look at a different series of elements to determine whether or not the contract is valid: capacity of both parties, consent, subject-matter legality, cause (a topic for a whole other post), and formalities.
Traditional recitals of consideration in English are often problematic per se. Think of the common phrase “NOW, THEREFORE. And in consideration of the premises,” which really just means “therefore” (Adams 2013). Or think of all the common yet outdated references to the sufficiency and value of consideration (e.g. good and valuable consideration). Such use often results in obscure and archaic phrasing that means very little in the source language and even less in the target language.
Let’s look at the following example:
“NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows.”
This entire 40-word paragraph can easily be replaced by this simple 6-word sentence:
“The parties therefore agree as follows.”
When translating paragraphs such as the 40-word nightmare above, translators have two choices: They can be “faithful to source” and translate the entire recital almost word for word all the while knowing that that particular combination of words means little or nothing to the reader or they can be “transparent” and cater to native speakers of the target audience by adapting the text to make it idiomatic and understandable to them (Lessig 1993).
While translators will often argue that in legal translation fidelity to source is always the right way to go, as a practicing attorney and translator, I disagree. The decision whether to be faithful to source or transparent depends on what the translated version is going to be used for. But that is a philosophical question that exceeds the scope of this post.
Consideration in translation
I can’t speak for other languages, but in Spanish, the most common mistranslation of the common law concept of consideration in contract recitals is something in the lines of “tomando en consideración” (which back-translates as “taking into account” or “taking into consideration” in the non-legal sense of the phrase) or other similarly literal phrases that fail to capture the original meaning of consideration in contract recitals altogether. Thus, far from transforming into valid consideration something that cannot be consideration, and therefore rendering an otherwise unenforceable contract enforceable, such translations further obscure the contract while rendering the translated version unintelligible to Spanish speaking readers.
In contract recitals, consideration should be translated as “contraprestación” into Spanish; and recitals will often need to be rewritten to capture the concept and intention of the drafter. But Spanish is not the only language in which consideration raises a similar problem.
A Possible Solution: Clean Up Your Source Text!
When you know your contract is going to be translated into other languages and/or used in different countries, you should try to avoid archaic or obscure phrases in the original English version. If a somewhat senseless 40-word recital in English can be purged of its obscurities and archaisms and replaced with 6 straight-forward, easy to understand words, then it should be. Clear, plain drafting in the source language can help to ensure a more accurate, faithful and straight-forward translation in the target language.
Adams, Kenneth A. 2013. Manual of Style for Contract Drafting. Chicago: American Bar Association.
Cartwright, John. 2013. Contract Law. An Introduction to the English Law of Contract for the Civil Lawyer. Vol. 2. Oxford: Hart Publisher.
Downes, T.A. 1993. A Textbook on Contract. London: Blackstone Press Limited.
Lessig, Lawrence. 1993. “Fidelity in Translation.” Texas Law Review 71.