Someone wrote to me recently asking for advice and book recommendations for starting to translate contracts DE>EN. I wrote back to say I would probably blog it, and now I cant find the email, nor my reply. The reason I wanted to blog it was to save myself typing in future, but its a big field and theres no special advice here.
Understand the original contract. That might mean reading the Civil Code or some other statutes, or getting information from Creifelds Rechtswörterbuch or a book on standard-form contracts with footnotes. Ive got some here, but theyre out of date so Im not going to recommend one.
See if its from Germany, Austria or Switzerland. Is the translation going to a specific English-speaking country, or will it be read by all and sundry in Germany who understand English?
Make sure it says it is governed by German law, and that the German-language version is binding. Converting a German contract into a contract under English or any other legal system is work for lawyers. Even if youre insured, youre probably not insured for practising law without a licence.
You can use one of the standard bilingual law dictionaries, but you cant trust it. You need monolingual German and English references to decide which alternative, if any, to use.
Translate the contract, conveying the meaning of the German in English appropriate in a written style (neither colloquial and slangy, nor pompous and outmoded). Dont translate word for word, but keep close to the original.
If you want to use the kind of standard-form phrases (boilerplate) used in English or American contracts, you must know what youre doing. Often, standard expressions will be phrased differently from the original and you need to be certain they have the same meaning as the German before you use them.I cant resist quoting Wirtschaftswörterbuch, 2 Bde., Bd.2 :…“>Schäfers Wirtschaftswörterbuch, which was cited on a mailing list recently. I wonder what they paid those people to give Schäfer five stars on amazon? It may be OK into German, but into English its full of translatorese and not reliable.
The topic is
saving … clause
(I presume that means separability clause, severability clause or saving clause)
Sollte e-e [sic] dieses Vertrages unwirksam oder undurchführbar sein oder werden, so berührt dies die Wirksamkeit des Vertrags im übrigen nicht. Die Parteien verpflichten sich vielmehr, in einem derartigen Fall eine wirksame oder durchführbare Bestimmung an die Stelle der unwirksamen oder undurchführbaren zu setzen, die dem Geist und Zweck der zu ersetzenden Bestimmung so weit wie möglich entspricht.
Should any individual provision or any part of any provision be or become void, illegal or unenforceable, the validity of the remaining provisions hereof shall in no way be affected. In such case the void and/or illegal and/or unenforceable provision or provisions shall be replaced by relative provisions coming as close as possible to the sense and spirit and purpose of this Agreement.
This deviates in some places: why part of? Why three adjectives (void, illegal or unenforceable; sense and spirit and purpose)?
What does relative provisions mean? and what is it the translation of?
No need for hereof, no need for in such case instead of in this case. And I think he misses the meaning of im übrigen, which can be difficult to render but here just means the rest of the contract.
Heres what I would probably do:
Should [any provision] of this agreement be or become invalid/ineffective or unenforceable, this shall not affect/this shall be without prejudice to the validity/effectiveness of the remainder of the agreement. Instead, the parties will/shall/agree to replace the invalid or unenforceable provision by a valid or enforceable provision that approaches as closely as possible the spirit and purpose of the provision replaced.
Its no big deal translating a severability clause. They happen to exist in both German and English law.
Here are notes on some kinds of clauses (but I would never call it a savingS clause, at most a saving clause, because it ‘saves the contract). :
Most contracts include a savings clause, which is meant to ensure that the contract remains enforceable even if part of the contract is later held invalid:
If any provision of this Contract is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Contract shall remain in full force and effect.
In the absence of a savings clause, it is possible that if a single clause is held invalid, the entire contract will also be rendered invalid.
One basic consideration when translating contracts into English is how to use verbs like shall, will, agree to, undertake to and so on, but that is a topic for another posting.
Now I dont know any book that will help much with this process of working out for yourself how to translate a particular contract. There are a few books on the market that show German contracts with their English translations, but they are not reliable. You need to know what is safe to use. Recently, in another mailing list, someone asked whether translation memories were available so you could just run a German contract through Trados and translate it. Well, you need to have a good translation to do that. I am sure the big international law firms have databases of translations of their standard contracts. But I dont know how to get my hands on them, or whether Id like them if I saw them. However, Googling with the right selection of words will bring up some good translated contracts, Im sure. But I could never imagine just running a contract through a translation memory program to translate it. This wish, moreover, is usually that of people who don’t understand contracts themselves.
Here are two bilingual contract books on the market.
Franz J. Heidinger / Andrea Hubalek, Anglo-amerikanische Rechtssprache. Praxis-Handbuch für Rechtsanwälte, Wirtschaftsjuristen und Wirtschaftstreuhänder, 3rd ed. 2000, Orac Verlag, Austria, ISBN 3-7007-1855-1
(I only have the second edition)
This has models from Germany, Austria, the USA and the UK. There are some translations, not 100% reliable. There are notes on many types of clauses. The book is divided into a number of sections with no global index, unfortunately. The book has a different title in the USA.
(See also earlier entry). This book sold like hot cakes and there is a second edition, not greatly changed I believe. I wrote a rather nasty review of it in the MDÜ which was reprinted in the Infoblatt of ADÜ-Nord at www.adue-nord.de (Publikationen, Infoblatt, 4/2003, p. 13 – in German).
It consists solely of about 30 German contracts opposite English translations of them. To quote myself:
Ein Beispiel für die Probleme der Übersetzungsvorschläge ist ein Kaufvertrag über eine Immobilie (S. 193). …nachfolgend: das »Grundstück«: hereinafter referred to as the »Real Estate«. Gleich darauf wird aber Grundstück mit Property übersetzt. Dann kommt nachfolgend: die »Immobilie«: hereinafter referred to as the »Property« [näher liegt eigentlich the Building]. Auf S. 196 wird dann wieder Real Estate statt Property geschrieben. Auch unschön ist die Übersetzung von Dienstbarkeiten mit using rights [statt easements oder servitudes; Nutzungsrechte heißt übrigens rights of use, nicht using rights]. Manche der Problemstellen sind zwar gut zu verstehen, z.B. This shall be without prejudice to Seller’s right to raise an evidenced higher default compensation claim [Stellung/ Gebrauch von evidenced nicht idiomatisch]. Aber will eine Kanzlei solche Vorschläge übernehmen?
Theres no doubt these two books could offer ideas, but the translator needs to develop the discrimination to see which don’t work.
Another rather good resource is an Agency Agreement Subject to German Law (bilingual) published by the German-British Chamber of Industry & Commerce in London. However, it costs £50.
Other good materials here.
You can find books on boilerplate in English, and collections of contracts; you can also find contracts on the Internet.