DIFFICULTIES OF TRANSLATION OF LEGAL TERMS IN CONTRACT LAW
DIFFICULTIES OF TRANSLATION OF LEGAL TERMS IN CONTRACT LAW
Oxana Kachan
Senior lecturer, M. Narikbaev «KAZGUU» University,
Kazakhstan, Nur-Sultan
Aray Rakisheva
Teaching professor, M. Narikbaev «KAZGUU» University,
Kazakhstan, Nur-Sultan
ABSTRACT
In the given article the authors describe some issues that appear while translating legal documents. They also consider why any translation services are not able to substitute an alive translator and explain the importance of further research of the topic.
Keywords: legal translation, specificity of legal language, clichés, translation services, requirements.
The emergency of great number of translation services in different browsers as Google Translate in Chrome, Bing Translator in Microsoft Edge or Yandex provides individuals and organizations an opportunity to translate free of charge and helps increase the speed of collaboration. At the same time, however, it may cause not only the material damage, but also lead to starting legal proceedings, up to the criminal accountability of the person who was in charge of the translation of a document. Such circumstances can appear as far as such translation services do not take into consideration the scope of the term but use its direct translation.
Everybody agrees that these electronic language assistants are an excellent aid for students, especially for those who study the language, that is, for everyday translation, but for people or institutions who may suffer a loss, such means are unacceptable. Business and cooperation are based on agreements between two parties, including foreign companies, therefore, in this case, a professional translator is required.
It would be nevertheless wrong to think that to know the terminology and the rules of translation is enough. Practice shows that the opposite situation is more frequent. It may turn out that the mistake made by the translator can lead to the termination of a contract or awarding damages to the injured party.
According to Mizuno (2018), legal translation is an application of a specific language used only in law and for exchange of legal information between people speaking different languages. He also remarks that “as law is a culture-dependent subject field, legal translation is not necessarily linguistically transparent” [1]. Despite the fact, that sometimes it is difficult to re-construe the data to convey the accuracy of the text, the communication must be concise, clear and reliable. Moreover, it shall have strict logic, be without connotational information and apply a special system of cliches and stamps.
As far as the topic, legal translation, is becoming more and more urgent and the most demanded it requires additional consideration and study.
As Tomson points out that it is possible to distinguish the following important areas of research in the field of language and law: legal argumentation, language norms in law, legal validity of a language, criteria for interpretation of texts and linguistic requirements for legal formulations, in particular in relation to the requirement of clarity and unambiguity [3, pp. 33-35]. Therefore, in this regard, the question “What are the difficulties of translating the texts of the various legal areas?” will be logical. Contract law could be considered as an example to answer the question.
According to Popov, any contract or agreement shall be accurate and “attractive arrangements” as well as helps avoid misunderstanding caused by lack of thought and care [3, pp. 4-5]. However, such aspects as the use of clichés, abbreviations; ambiguity of English words; contextual conditionality of the used linguistic units; use of terms reflecting the realities of the legal system of another country can make the both contracting parties to endure some difficulties in information reception [3, p.36].
Issue 1. The use of clichés.
Legal documents are full of clichés that sometimes cause substitution and translation inconvenience. One of them is the term ‘WHEREAS’. It can have two ways of translation in law, so its interpretation depends on where it is written. For instance:
“For that reason, article 16 was difficult to accept, whereas article 17 posed no specific problems” [4]. In this case ‘whereas’ means “on the contrary”. However, if the term is used as an introductory statement to a recital in a contract, it means “that being the case” or “considering that”. “The ‘whereas clause’ explains the reasons for the execution of the contract and, in some cases, describes its purposes. However, it is not essential component for its operative provisions” [5]. It can be considered as anachronistic and could be excluded. As Popov writes some contract contains the word ‘recital’ describing the essential fact without the application of the word ‘whereas’ [3, p.6].
The texts of contracts also apply adverbs that no more in common use: hereby, hereinafter, herein, hereon, heretofore, hereunder, therein, thereon, thereto, and etc.. Their translation presents a certain difficulty for a person. In one or another, these seemingly meaningless terms affect the specificity of the contractual relations.
Issue 2. Abbreviations.
One of the requirements that any contract or agreement shall meet is avoiding words that could be interpreted in many ways. It is also related to abbreviations. However, there are ones that are recognized everywhere. Among them are LLP, plc. and ltd.. Their application can cause some troubles too. For example, upon business law of Kazakhstan partnership can have abbreviation as LP and LLP. The same problems appear with translation of Public Limited Company. It can be ended by plc. or JSC. It seems to appear due to the realities of the legal system of another country.
Issue 3. Ambiguity of the word within the legal framework.
As it is known the term shall be unequivocal and not tainted by ambiguity, but a number of cases show that the meaning of the term sometimes depends on the context. For example, there are many ways to say ‘end of a contract. It can be translated as ‘termination of a contract’, ‘discharge of a contract’, ‘expiration of a contract’. All these options will have absolutely different translation into Russian. ‘Termination of a contract’ means “end of a contract prior to it being fully performed by the parties. In other words, prior to the parties performing all of their respective obligations required by the contract, their duty to perform these obligations ceases to exist” [6]. ‘Discharge of a contract’ means “the termination of the contract made by two parties with the fails in performing the obligations mentioned at the time of creating an agreement with the acceptance of both parties like free of consent” [7]. ‘Expiration of a contract’ means “the ending of the agreement pursuant to its terms without any action by a party to the agreement” [8].
Nevertheless, why is so important to apply a proper translation? One word can change the meaning of the contract. The following examples prove this in full. “The client has a license agreement under which he or she incorporates pieces from a popular board game into jewelry. If the agreement expires, the client may sell off any remaining inventory during the 60-day period following expiration. In contrast, if the agreement is terminated by the licensor for breach by the licensee, there is no sell-off period” [8].
Issue 4. The use of word strings.
One of challenges that are accompanied by translation of agreements and contracts are connected with the employing words strings that are embodied in a series of nouns, adjectives or verbs. Usually, these words are synonyms. Popov argue that this tradition exists “to convey the meaning of all-inclusiveness, that is, to cover all possible situations and eventualities” [3].
For example: “Each party to this Agreement hereby acknowledges that it is aware that it or its advisers, agents or solicitors may discover facts different from and in addition to facts that they now know or believe to be true with respect to the subject matter of this Agreement, but it is their intention to hereby fully, finally, absolutely and forever settle according to the provisions of this Agreement any and all liabilities, claims, disputes and differences which exist, may exist or have ever existed between them relating in any way to the matters the subject of this Agreement” [3].
Having considered some difficulties connected with ‘legal language’, it should be noted one more that it is complex and demands additional knowledge of a subject. A translator should take into account the differences in the legislations of the countries, specificity of legal communication, and possess knowledge in law. Without knowledge of a specific type of legal relationship translation of legal documents will be unreliable and may have a negative impact on business and cooperation. From my point of view, legal translation is very popular at the moment and its importance increases day by day. However, the development of the business world leads to the fact that some terms are no longer used or extend their meaning, so legal linguistics needs to be investigated further.
References:
- Mizuno, Makiko (2018). "Linguistic Study of Court Interpreting in Lay Judge Trials in Japan". International Perspectives on Translation, Education and Innovation in Japanese and Korean Societies. pp. 207–222.
- Thomson, G. (2004). Legal translation course (civil and commercial law). M.: MGIMO.
- Popov, E. (2009). Textbook for the elective course “Translation in the field contract law“. Orenburg: OI MGYuA, 105 p.
- https://context.reverso.net/%D0%BF%D0%B5%D1%80%D0%B5%D0%B2%D0%BE%D0%B4/%D0%B0%D0%BD%D0%B3%D0%BB%D0%B8%D0%B9%D1%81%D0%BA%D0%B8%D0%B9-%D1%80%D1%83%D1%81%D1%81%D0%BA%D0%B8%D0%B9/
- https://legal-dictionary.thefreedictionary.com/Whereas
- Hellmuth & Jonson (Nov. 15, 2011). Understanding contract termination. Retrieved from https://hjlawfirm.com/understanding-contract-termination/#:~:text=To%20terminate%20a%20contract%20means,fully%20performed%20by%20the%20parties.&text=In%20general%2C%20the%20effect%20of,unperformed%20obligations%20under%20the%20contract.
- https://www.vedantu.com/commerce/discharge-of-contract#:~:text=The%20discharge%20of%20contract%20is,parties%20like%20free%20of%20consent.
- Shults, D. (n.d., 2018). What is the difference between expiration and termination of a contract? Retrieved from: https://www.quora.com/What-is-the-difference-between-termination-and-expiration-of-a-contract