LATER NOTE: I received an email from Kenneth Adams saying that the article will shortly be available on his website.
In the latest ITI Bulletin – not online – there is an article by Kenneth A. Adams, author of the US book ‘A Manual of Style for Contract Drafting’. I wasn’t going to comment on the article, which most people won’t have read, but then I did mention the book before, and a little discussion has developed in the comments there.
Kenneth Adams briefly discusses the over-complex style of legal drafting, and then his own background with regard to translation (his sister is a conference interpreter, and when he worked for a US law firm in Geneva, he occasionally translated legal prose – ‘always French-to-English, thankfully’ – not only thankfully, but naturally).
The subject of the article is translating English contracts into other languages. Adams writes:
bq. I would imagine that the principal problem facing a translator is that many elements of a contract are included not because of the meaning they convey, but because they’ve always been there and the drafter feels that the contract somehow wouldn’t look right without them.
He refers to petrified elements such as witnesseth, or Now, therefore. Actually, these aren’t such a big problem, once you’ve decided once how to handle them.
He discusses the use of shall, and when must, will or the present tense should be used, and also, and this is useful, provided that. The latter should not really be used in contracts, because of its imprecision, but it will be used, and will have to be translated, nevertheless.
The last topic is synonym strings. Here is the greatest problem in translating out of English. Sometimes a doublet or triplet consists of synonyms, sometimes not, and unless it’s obvious, probably all terms need to be translated, but it isn’t usually possible to find out the exact meanings in English, not even from the lawyer who drafted the contract.
Back to the discussion in my comments on the earlier entry: take an expression like ‘NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration…’. Adams says ‘in consideration of these premises’ is odd, since the ‘now, therefore’ section, which he calls the ‘recitals of consideration’, is required for the agreement to be enforceable, but ‘these premises’, i.e. the above recitals (names and addresses of parties, the fact that one owns an item and the other wants to buy it) do not constitution consideration. I agree with him, but I think a standardized translation will do the job.
AMM thinks ‘these premises’ means ‘this contract’, whereas I think it means ‘the recitals above’. It’s possible to find support for my opinion, but not much. Google suggests in any case that the term is US and not British (do a search on site:uk). Books on contract drafting suggest that the whole consideration section can be omitted, since it adds nothing. Of course there must be consideration (Gegenleistung, often money), but it need not be the actual value. Mellinkoff, in ‘Legal Writing: Sense & Nonsense’, says that the consideration boilerplate goes back to a time when parties were disqualified from testifying, and the writing could ‘testify’ for them. Garner, in ‘A Dictionary of Modern Legal Usage’, writes:
bq. The word premises is sometimes used in the sense of matters (usu. preliminary facts of statements) previously referred to in the same instrument. In practice, this usage is often inarticulate and confusing, since the subject matter constituting the premises is rarely specified in the instrument.
Here’s the example given by AMM in the comments to my earlier entry:
bq. ‘WHEREFORE, in consideration of *these* premises, and for *other* good and valuable consideration the sufficiency of which is hereby acknowledged, the parties agree …
I’ve heard of to as a domain, but not tk, so I looked it up, and it’s Tokelau, apparently three atolls somewhere off New Zealand.