Adscliei Maria Mirabela

Sources of difficulty in the translation of contracts

2. General features of the legal languages and systems involved 2.1. 2.2. 2.3. The nature of legal English The nature of legal Romanian Common vs. Civil law

2.1.

The nature of legal English

Many language theorists have analyzed the specificity of legal English, describing the main features which characterise the English legal discourse and which, at the same time, pose specific problems to translators in the field. Legal English is strongly connected to the main historical events which have formed, influenced and defined the English language in general, as well as the legal system. The specificity and complexity of legal English come precisely from the impress of these historical events. Therefore, legal English that we know today is the outcome of hundreds of years of linguistic struggle and evolution. The influence of Latin, through the power of the Roman Church, and Norman French that followed the Norman invasion, penetrated the skeleton of Old English, initially defined by the Germanic invaders who had conquered the British Celts. These historical events brought critical contributions to the development of the English language in general and to both the legal language and the legal system in particular, many of the archaic vocabulary and terminology, stiff formulations and redundant combinations of words that characterise todays English legal language being survivals of the early stages of development mentioned above. As Varo and Hugues point out, instances of these stages of development are still found in the texts of British lawyers and their continental colleagues, the legal language abounding with expressions which point to these traces: e.g. the famous Latin tag Nulla poena sine lege1, as well as the well-known French motto Dieu et mon droit1 (Varo and Hugues: 5).

No punishment except in accordance with the law

From a syntactic point of view, legal English is characterized by complex sentences formed of multiple subordinate clauses. They are the result of the need to include all the important pieces of information into one single unit to avoid the ambiguity that may arise from placing the conditions of a provision into separate sentences. Moreover, the English legal discourse is characterised by an extensive use of passive structures which may hide, at first sight, the identity of the agent who performs the act, which can sometimes obscure the meaning. Complex conditional structures combined with prepositional phrases are also quite frequent in contracts and statutes in particular, where all possible scenarios and exceptions must be mentioned to offer protection to the agents involved (Williams: 114). From the point of view of the punctuation, long sentences are usually not divided by commas or other types of punctuation marks, the purpose being that of avoiding different shades of meaning that might arise from their use. In contracts, the common nouns representing the parts involved are usually capitalized throughout the whole text. Moreover, they are repeated every time they need to be mentioned, favouring lexical repetition instead of the use of pronoun references or other types of anaphora (Williams: 113). Other features that further contribute to the overall complexity of the syntax are the use of doublets or triplets and the high rate of archaic adverbs and prepositional phrases which, combined with the other features described above, create the impersonal, formal and stiff style that characterises the language of the English law.

2.2 The nature of legal Romanian

Like in the case of legal English, the main features of the Romanian legal discourse are strongly connected to the development of the Romanian legal system, as well as the development of the Romanian language in general. The background of the Romanian language and system is quite different from the English one described above. The history of the Romanian legal system can largely be divided into four main periods of development (Cernea 2003: 16): the antic period, represented by the era of the Dacian tribes
1

The French motto was first adopted by King Henry V in the 15 th century and it refers to the divine right of the

monarch to govern. It appears on the royal coat of arms of the United Kingdom, several translations being available: God and my right, God and my right hand or "God and my right shall me defend".

and the Roman occupation; the period pertaining to the medieval feudal system; the modern period after 1865 and the contemporary period. Each one is marked by strong influences of different peoples with different legal systems. Therefore, the first period is marked by influences coming from the Roman Empire which imposed itself when Dacia became a Roman province. The need for social order was felt in that period as well, the roman norms being imposed over the existing rudimentary system. The medieval period was characterized by a strong dominance of the Church whose weight was felt in the development of the legal sphere as well. Therefore, the first texts with a legal character were ecclesiastical texts which had the power to determine the people to respect the provisions of the written law. Slavic and Turkish influences are characteristic for this period because of the influence of the Byzantine and Ottoman Empires. As far as the modern period is concerned, Adriana Stoichitoiu-Ichim considers three important stages in the development of the modern Romanian legal language (Stoichitoiu-Ichim: 19): (1) the first significant Romanian legal texts which date back from the 17th century, representing a corpus of either handwritten or printed legal rules; (2) the transitional period between 1780 and 1864-1865 when the legislative union took place under the reign of the Romanian ruler, Alexandru Ioan Cuza, who adopted the Criminal and the Civil Codes based on the
Napoleonic code1; (3) the period following 1865, when the Romanian legal system starts to modernize, taking a shape more close to the one it has today.

The first codes of regulations were translations from Greek and were first printed in Moldavia2 and Wallachia3 in the middle of the 17th century. The legal terminology was initially developed by means of calques from Greek, Russian, Hungarian and German which joined the Romanian terms that were part of the common vocabulary, traditional and old in character (Stoichitoiu-Ichim: 26).

The Napoleonic Code (Code civil des franais) is the French civil code established under Napolon I in 1804 which

influenced the legal systems of many European countries. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified.
2 3

Cartea romneasc de nvtur also called Pravila lui Vasile Lupu, which appeared in Moldavia in 1646. Indreptarea legii, also called Pravila lui Matei Basarab, which appeared in Wallachia in 1652.

The tendency to constantly modernize the Romanian language in general and legal Romanian in particular replaced little by little the borrowed terms with neologisms, taking a more modern shape around the middle of the 19th century. Therefore, the fourth period, the contemporary one, is the outcome of the previous periods of development and it has its own characteristics. Stoichitoiu-Ichim identifies the main features of the Romanian legal discourse and makes a detailed analysis of its lexis, morphology, syntax and semantics. From a lexical point of view, she notices the co-existence of both technical terms and terms pertaining to the common vocabulary, whose combination results in a unitary lexical assembly with a dynamics of its own (Stoichitoiu: 10) From the point of view of textual cohesion, the elements that keep the text together in the Romania legal discourse are the pro-forms represented by demonstrative and indefinite pronouns and adjectives, relative pronouns, as well as adverbs (Stoichitoiu-Ichim: 64). The English legal discourse, on the other hand, does no favour the use of pro-forms, but rather the lexical repetition [which] may take the form of an almost obsessive repetition of lexical items (Williams: 113). Unlike English, the Romanian legal discourse favours the use of punctuation marks which may sometimes render the meaning of the text more clearly. Stoichitoiu-Ichim concludes that, from a formal point of view, and similarly to the English legal discourse, the length of legal provisions tend to vary depending on their content, some of them being very long while others are no more than one line long. Other factors, such as precision, conciseness and the need for an accurate and detailed expression of facts are most of the times essential for defining sentence length and sentence fragmentation. To sum up, each of the two languages present both similarities and differences as far as the specific elements of the legal discourse are concerned. What is clear in both cases is that they have their own peculiarities which often represent sources of difficulty for translators.

2.3.

Common vs. Civil law

Some of the most difficult problems that translators of legal texts have to deal with come from the differences between the legal systems involved in the translation process. In order to overcome these difficulties, translators need to take into consideration the specificity of the legal

systems that the source and target texts are part of as the legal language is strongly connected to the national legal system (Cao: 23). Translating a legal text from one language to another becomes a matter of translating the text form one culture to another, all the more so when the two legal systems are different. Such is the case of legal texts pertaining to the common law which must be translated into the language of a country where civil law is used, and vice-versa. Common law developed in England from the 11th century onwards and spread across continents through the British colonies. Unlike Civil law, Common law is largely based on precedent, meaning that it is founded on the judicial decisions previously made in similar cases, which are then recorded in yearbooks and reports. Therefore, judges and juries play an important role in the shaping of the legal system based on analogical reasoning. Civil law, on the other hand, is founded on exhaustive legal norms and rules organized in codes which attempt to cover all matters that can be brought before a court. Moreover, it also specifies the punishments to be applied for the breaking of these norms and rules. A judges role, in this case, is to establish the corresponding code (civil or penal) that the case is part of and to apply the provisions of the applicable code (Cao: 25-26). The differences in the organizing principles of the two legal systems will lead to a series of translation difficulties which are domain-specific and culture-bound and which will be discussed in detail in Chapter 5.

3. Contracts in the Anglo-Saxon world 3.1. 3.2. 3.3. Form and structure of contracts Classification of contracts Function of translated contracts

3.1.

Form and structure of contracts

In todays world, all the transactions, arrangements or agreements that people make usually result in contracts, which may vary in form and length according to their subject matter and content. Defined by Frederick Pollock as every agreement and promise enforceable by law (Pollock 1885: 1), contracts are a vital element for the present day society because they have the power to offer protection by creating rights and obligations which are legally binding.

Some contracts may be short and concise, but most of them usually contain detailed information and are quite long as they try to comprise all the aspects of a project, as well as the parties rights and responsibilities. What is certain is the fact that all contracts share a set of common textual components, which allows for their description in terms of form and structure. Although oral contracts are good in law, as Varo and Hughes point out (Varo and Hughes 2002: 127), and despite the fact that any contract can be personalised to fit the purposes and needs of the parties involved, there is a set of elements and leading principles which have to be respected to make a written contract valid and binding. Therefore, the formation of contracts requires four essential elements in order for them to be enforceable: there must be an offer, an acceptance, a consideration and an intention (Brown and Rice: 68). The first element refers to the terms of an agreement which have to be capable of being accepted by the parties involved. The second element refers to the acceptance on the part of the offeree of the terms and conditions of the contract. Consideration refers to what is given and received by each party and it usually consists of money, goods or services, although almost anything can make the object of a consideration. The last element refers to the intention of the parties to create a legal relation, i.e. their promises must be legally binding. Besides the elements mentioned above, some further principles which will ensure the binding character of a contract must be respected. Therefore, the parties involved in a contract must be legally capable to consent to the contract; it must be made in the form required by the law and it must be enforceable if one of the parties fails to respect the provisions of the contract (Brown and Rice: 70). As far as the structure of the contract is concerned, the clauses which form a contract are basically similar in any type of contract, although they may vary depending on the subject matter and the interests of the parties involved. Thus, binding contracts will usually include: a heading; a commencement and the date when it was signed; the detailed description of the parties involved; recitals, or paragraphs which describe the reasons for which the parties have agreed to enter into the respective contract, as well as other related transactions; operative provisions, where the rights and obligations that the parties have agreed on are stipulated; definitions and interpretation, where the meaning of the essential terms included in the contract is explained; conditions precedent, stipulating the conditions which must occur before the parties perform their part in the contract; the consideration, other operative clauses such as warranties or

limitations and exclusion causes, as well as the schedules, which contain other appendices and annexes (Brown and Rice: 72). Most, if not all, contracts will also include a force majeure clause, also called unexpected event, which will mention all the events that can affect a party and that are outside that party reasonable control. Moreover, it is quite common nowadays to include a language clause when the parties involved in the project that makes the object of the contract speak different languages and when the contract is written in the two languages (see Appendix II). This clause will be used to specify which language shall prevail in case of inconsistency of the two language versions or when matters have to be taken to court (Cao 2007: 87). As it has been mentioned earlier, the sections included in a contract can vary according to different factors which give its final shape. Nevertheless, contracts must be formulated by abiding by certain principles and by including certain elements which would otherwise make them unenforceable.

3.2.

Classification of contracts

As it has been mentioned above, from the point of view of the form, it is not mandatory for a contract to be in written form to be legally binding. Oral contracts can be invoked in case of a trial as well, except that they can be difficult to prove in court if no witnesses were present at the time when the parties entered it or they can be open to misunderstanding due to the fact that their terms may be difficult to remember over time. For this reason, signed written contracts are desired when the parties involved want to make sure that their interests are legally protected. Because of the multitude of contract types, they have been categorised according to various criteria such as their usability, validity, extent of obligation etc. From the point of view of the domain of the activity, transaction or business around which a contract is formed, there is a wide variety of contract types. Thus, there can be lease agreements1, loan agreements, employment contracts, sales agreements, partnership agreements, etc., basically for any type of activity there is.
1

Agreements and contracts are synonyms and are used interchangeably, depending on how they usually connote.

Nevertheless, from the point of view of their validity, one can distinguish among four types of contracts (Brown and Rice: 70): 1. void contracts are contracts which have no legal effect because one or more of the elements which make it voidable are not respected. For example, a contract which is signed by a youngster under the age of 18 would make the contract void because they are not recognised in law as having legal capacity to consent to a contract (Brown and Rice: 70); 2. voidable contracts are contracts that may be cancelled by one of the parties for different reasons, e.g. one of the parties was constrained to enter into the contract. 3. unenforceable contracts are contracts which satisfy the basic requirements for them to be legally binding but fail to fulfil some other law. From the point of view of the extent of the obligation involved, contracts can be either unilateral or bilateral. The first type involves a promise from the part of only one party, while the latter type involves promises from both parties. For example, in a unilateral contract, a seller of a house promises to sell the house to a buyer in exchange of a certain sum of money, in which case only the seller promises to perform an obligation for the sum of money required. If the seller promises to sell the house only if the buyer promises, in his turn, to buy it for a certain sum of money, then the contract becomes bilateral because both of them have made promises. Another classification of contracts is that which concentrates on the terms of the bargain contained by a contract. From this point of view, contracts may be either express or implied, meaning that in the former one both parties have specified their terms and conditions at the time when the contract was formed, while the latter one refers to the surrounding facts and circumstances that suggest an agreement even though a written contract signed by the parties does not actually exist. For example, an implied contract exists between a service center and the clients who take their cars to the center for repairs. The center expects the clients to pay for the service, while the clients expect the center to fix their cars properly. All in all, irrespective of their structure or type, the role of contracts is to protect the interests of the parties involved and to ensure the support of a higher and impersonal authority when the promises are no longer respected by one of the parties.

3.3.

Function of translated contracts

Functionalist approaches to translation state that the linguistic choices translators make when translating a text depend greatly on the function that the text fulfils in the target language and the purpose for which the translation is required in the first place. This is true in the case of contracts as well, because the function of a translated contract can influence to a great extent the final product. Translated contracts can fulfil many purposes. As Deborah Cao points out, there are many reasons for requiring the translation of private legal documents which may be solicited by either organisations or individuals:
(...) legal documents may be translated for business purpose, such as contracts that are used as part of business transaction. These are documents that are translated for use by individuals for various purposes, for instance, a will, a statutory declaration, or a marriage certificate. There are documents that are translated for litigation purpose, for instance, statements of claims or pleadings and witness statements. Legal advice of lawyers to their clients may also require translation if they speak different languages, as do instructions from clients to their legal representatives. (Cao

2007: 84)

The most important aspect to consider in the translation of contracts is the legal status of the translated document. From this point of view, contracts may be translated for two main purposes: either for informative purposes or for normative purposes (Cao 2007: 84). In the case of contracts which are made in two or more languages because the parties involved speak different languages, the language clause which is usually included in such contracts stipulates which of them will have legal force in court. Moreover, both texts can be taken into account in court, meaning that both of them can have the same legal power and are considered equivalents. Nevertheless, the same clause may stipulate that only one language version will be taken into consideration in court, in which case the other variant(s) of the contract will have purely informative purposes so that everyone involved in the matter can have access to the information included in the contract. Therefore, establishing the function of the text to-be-translated is extremely important, especially in the case of contracts, because it will help translators make up their mind on such issues as what translation strategies to use, when and when not to insert additional information etc. A translated contract whose purpose is normative will impose specific restrictions on the

translator who will have to offer a translated document with the same legal effect as the original. On the other hand, an informative translation of a document will offer more freedom to the translator who will be able to explain different concepts through different strategies. The fact that contracts are designed for use by specific individuals and for specific purposes is an important aspect which the translator will always have to bear in mind when dealing with this type of text.