Translegal.com teaches legal English, and this week they had an entry on the verbs used for ending a contract: How to End Things, by Peter Dahlen.
I’m rather obsessed about this topic because it’s something I was never satisfied with when I was teaching legal translation. Indeed, contract is rather a big beast to teach translators because on the one hand there are the elements of the law, but these need to be followed up by a long consideration of the texts used in practice.
Back to Translegal: obviously these drafting tips are elementary information for those drafting contracts in the USA. Translators into English need to know which verb corresponds to the verb in their source language. This is a recurrent problem – worst of all to teach, I think.
The Translegal list is a good starting point, defining four nouns:
Termination typically refers to the ending of a contract, usually before the natural end of the anticipated term of the contract, which may be by mutual agreement or by exercise of one party of one of his remedies due to the default of the other party.
Cancellation refers to the ending of a contract by destroying its force, validity, or effectiveness. Generally, cancellation puts an end to a contract by discharging the other party from obligations as yet unperformed, usually because the other party has breached or defaulted.
Expiration (or expiry) signifies a coming to an end of a contract period.
Rescission generally refers to the act or process of rescinding (i.e. undoing or unmaking) a contract. More specifically, it refers to the right of the parties involved within a contract to return to the identical state they were in before they entered into the agreement.
Repudiation refers to the refusal to perform a duty or obligation owed to the other party. It consists of such words or actions by the contracting party as indicate that she is not going to perform her contractual duties in the future.
Let me start by saying that expiry is the common term in British English, rather than expiration. And throwing out the term repudiation for translation purposes, at least from German. Repudiate is the verb commonly used when a minor seems to have entered into a fairly weighty contract and is permitted to get out of the contract within a certain time after reaching the age of majority. This is a narrow sense and not one I’ve ever needed in translation from German. It implies not only rejecting one’s own contract, but being legally able to do so (under English law).
Expiry is also an easy one – if a contract expires, it does so automatically. It’s the other three verbs – terminate, cancel and rescind – which describe an act by a party to the contract.
Now, let’s consider the German. I’ll just start by listing some of the collocations in Romain’s DE>EN dictionary:
als ungültig behandeln: to repudiate
anfechten: to avoid
aufheben: to cancel by mutual agreement
kündigen: to terminate
I’ll add Rücktritt
The situation varies according to the kind of contract – for example, a lease of land is an ongoing contract which sooner or later may be terminated/gekündigt by one of the parties, whereas a contract of sale is a one-off arrangement which will normally just be completed with no particular irregularities.
I don’t see great problems in linking kündigen and terminate (I seem to remember that some non-law translators on a UK mailing list got rather excited about the idea of terminating employment – presumably they had read more science fiction than law – and wanted to use dismiss. Dismiss is OK (or not OK) if the employer does it to the employee, but the employee can’t dismiss the employer). One can also get tied up in knots about termination and notice of termination – kündigen can mean both – but I think most translators can sort that out.
Rescission (to rescind) usually means putting an end to the contract and putting both parties back into their original positions, as far as possible (ex tunc). But it doesn’t always!
Cancel, I gather, tends to mean ending it from the present point (ex nunc).
I was going to pursue this topic further, but I think it has reached the point where no one would have the energy to read any further. I think what might be good would be for me to make a list of legal terms with their meanings as relevant to translators into English. But not today.