ITI article on contract translation

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.

8 thoughts on “ITI article on contract translation

  1. Thanks for that, Margaret.

    Yes. Tokelau is an obscure place to quote from – but the recital isn’t.

    Also, I take issue with Garner. In a GB pleading or court judgement, in the premises – i.e. in this case/the case in point – has a specific, articulate and unconfusing meaning and has nothing to do with the subject-matter of an instrument.

    Indeed, like ‘at all material tmes’ meaning at the times covered by the dispute, mere use of such quaint phrases will add not only legal credibility and polish, but also attract very high marks for drafting skills on Eng. & Wales Bar Finals.

    Pity no guidance from Adams as to how to deal with Swiss-French ‘throw-aways’ in pleadings and legal letters, like lawyers signing themselves – or their secretaries siging? – off Av. Exct.

  2. Well, all I can say is that I’m quite mystified. Even Words and Phrases Legally Defined only gives two meanings: 1) land and buildings and 2) things before mentioned.
    Here is McCardie J in 1918: ‘…the word “premises” may sometimes mean all the foreparts of the deed antecedent to the habendum, that is, the premissa or preceding parts of the deed …Or it may mean the thing demised or granted by the deed. The meaning of the word must depend on the language actually employed in the deed and the relevant context.’

    I knew you didn’t like Garner, which is why I quoted Mellinkoff too. Anyway, your Tokelau quote may be NZ, or US, or UK, which is the only material point. I’ll have to believe this when I see it.

  3. I can only assume Garner is also drawing on US/Texas legal usage.

    A LawProse Inc website out of the US says Bryan A. Garner clerked for a judge and practic/sed law many years with a major firm. So he must have studied and qualified somewhere – though where I cannot find.

  4. All I can say is I associate him with Texas, and I presume he did the Texas bar exams, but where he went to law school I have no idea.

  5. So we assume he is fully qualified Attorney and not a law firm librarian – though there are refs. to him as a renowned ‘legal lexicographer’.

  6. You’re right, there isn’t much about his qualifications on the Web. This is from the LawProse site though:
    >>After serving as an associate editor of Texas Law Review, Garner clerked for Judge Thomas M. Reavley of the Fifth Circuit. For several years, he practiced law in a major firm, and then he began teaching — first at the University of Texas School of Law and now at Southern Methodist University School of Law.

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