What To Pay Attention To When Translating Contracts

What is a Contract

A contract is, in short, a legally binding and enforceable agreement between two or more parties, creating mutual obligations. When two parties decide to enter into an agreement, an offer – which could be a promise to perform a service or sell a product, for example – is made by one party and accepted by the other. By signing a contract, the signatories agree to its terms and are bound by them.

Reasons for Having a Contract Translated into Another Language

International partnerships require the parties involved to be on the same page when it comes to duties, risks and responsibilities.

In the globalization era, more and more businesses are promoting international trade, executing mergers and acquisition deals. The benefits associated with these practices include:

• Financial strength;
• Access to a wider range of resources;
• Reduction in production costs;
• Access to a larger talent pool.

Because of the high risks associated with international trade, contract translations have to be 100% accurate, or else they can lead to disputes or even render a contract invalid. 

‍Who Can Translate a Contract?

Any translator with sufficient knowledge in legal language can, technically, translate a contract. However, understanding legal terms is not enough. It is important to be familiar with the governing law and terms used in the countries where the contract is to be performed.

A contract written in European Portuguese might not contain the correct terms that will make a provision enforceable in Brazil, despite the official language of both countries being Portuguese. That doesn’t necessarily mean that such provision, or the whole contract, will be deemed void; it just means that in case company A decides to sue company B for breach of contract, the court will not award company A any damages.

Which Version of the Contract Will Prevail Over the Other?

Typically, the language the contract was originally written in is the one the court will take into consideration. However, when drawing up an international commercial contract, it is possible to insert a clause establishing which version of the contract will prevail.

Which Governing Law and Jurisdiction Will Prevail in Case of a Dispute? 

When drawing up a contract, it is possible to add a clause defining the governing law to be applied towards the case as well as the Court that will hear the dispute.

However, due to the complexity of laws governing certain countries or states, these clauses are not a guarantee that the jurisdiction or Court chosen by the parties will be enforced.

It is also possible to include an arbitration clause in a contract, electing a neutral third party that will hear a dispute out of court. In an arbitration, resolution tends to be speedier, matters are kept confidential, and costs tend to be lower.  

In all cases, an attorney specialized in International Law will know exactly how to draw up an international contract and which clauses to insert/not to insert in it.

Do Contracts Need to Be Translated Literally?

No. Because contract verbiage and structure may vary from one country to another, even between countries that speak the same language, a contract translation may look slightly different than the original version.

However, a contract translation has to convey the exact same message of the original document. It is the responsibility of the translator to fully understand the meaning of each sentence in the contract.

Does a Contract Translation Need to Be Certified?

A client may require that a translation be certified. If that happens, according to the American Translators Association, the translator needs to write a certification statement. Please check the American Translators Association for more information on how to certify a translation and what to include in a certification statement in the United States.

‍Does a Contract Translation Need to Be Notarized?

This will depend on the client. But if the client requires the contract translation to be notarized, i.e., legally acknowledged by a notary public, DO NOT sign the certification statement in advance, as the notary needs to witness your signature. Please check the legislation in your country.

NDA and Confidentiality in Contract Translation

Very often, translators are asked to sign Non-Disclosure Agreements (NDAs). NDAs are legally enforceable agreements between two parties ensuring that sensitive information is not disclosed to third parties. Confidentiality is required for several reasons, especially in the competitive markets of nowadays. 

In a situation where you do need to share your translation with someone else, e.g., for proofreading, you will need written consent from your client first. Disclosing information that should be kept confidential might get you into trouble.

‍Best Practices for Translating Contracts

If you are the translator who has been given the task of translating an agreement, please make sure that:

• You have sufficient knowledge of contract translation;
• You have excellent grammar (punctuation, syntax) in both the source and the target language;
• You are familiar with the legal terms used in the countries where the contract will be performed;
• You have been given enough time to translate the document;
• You know where your resources are (glossaries, translation memories, etc.);
• Consistency is ensured throughout the entire document.
• You have revised your document thoroughly and had your translation thoroughly proofread before sending it to your client. It helps to have the translation proofread by a second pair of eyes.

It is advisable that you read the contract from beginning to end before you start working on your translation to avoid surprises later.

Once the translation is completed, if it was translated from a foreign language to the language of your client, instruct him/her to have the document reviewed by an attorney. This will ensure that the translation does not render clauses that are not enforceable by law or that could cause problems in the future.

‍Should I Contact the Client With Questions Regarding the Contract?

It is not unprofessional to contact the company or the responsible lawyer with questions you might have regarding terms or clauses of the contract. Contacting your client or company is, indeed, advisable. Similarly, if you find mistakes in the original document, such as missing words or typos, do let the client know as soon as possible.

Common Mistakes When Translating a Contract

‍Punctuation

Punctuation is not universal across languages, especially when it comes to commas. Commas have been responsible for catastrophical mistakes and are known to have cost millions. See the two stories below:

“Fruit-Plants” vs “Fruit, Plants”

In 1872, when the United States was under the government of Ulysses S. Grant, a Tariff Act was issued, which contained a list of items exempt from import tariffs. It is important to mention that at that time, like today, taxes represented a huge portion of government revenue. Among the items exempt from taxation were “fruit, plants, tropical and semi-tropical for the purpose of propagation or cultivation.”

The copying clerk, however, had made a typo: where it reads “fruit, plants”, a hyphen should be in the place of the comma, making it “fruit-plants”. Because of that, fruits were suddenly exempt from import taxes. 

That resulted in a loss of many millions in revenue and compensations.

‍A Comma Worth US$5 Million

More recently, in 2018, following a lawsuit, a court ruled in favor of a group of dairy delivery drivers who had never received overtime compensation. 

Well, Maine’s labor laws read that those involved in “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods” were not entitled to additional pay.

Because there was no comma between ‘shipment’ and ‘distribution’, one could interpret “packing for shipment or distribution” as two separate tasks. This way, the drivers, who were involved in the distribution – but not in the packing of perishable foods–, could, the, be entitled to overtime pay. 

Had an Oxford comma been there, there would be no room for confusion. The Court decided that the drivers were entitled to receive $5 million.

‍Numbers and Amounts

When expressing amounts, different languages have different ways to separate decimals, thousands, etc. For example, note how commas and points are used and placed differently to express the number ‘one hundred thousand point fifty’ in American English, Indian English and Portuguese:

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‘False’ and ‘Partial False Friends’

False friends are terms that look similar but have different meanings. Partial false friends are terms that have more than one meaning in one or both languages, and one or some of the meanings are not shared between the two languages.

These can easily sneak into your document if you are not fully focused on your translation.

Examples:

Execute (American English) vs. Executar (Portuguese)

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Partial false friends can potentially lead to confusion:

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To indemnify, in American English, according to CollinsDictionary.com, means:

1. to compensate for damage or loss sustained, expense incurred, etc
2. to guard or secure against anticipated loss; give security against (future damage or liability)

These definitions are quite contrasting. In Spanish and Portuguese, for example, only the first definition, ‘to compensate for damage or loss’, is found for the words ‘indemnizar’/’indenizar’. 

For the second definition of ‘indemnify’, some of the terms that can be used in Spanish and Portuguese include:

Words With Different Meanings Across Different Varieties of a Language

A contract written in Indian English may contain terms that are not used or intelligible in American or British English. For example:

To avail (Indian English) =  to make use of something, especially an opportunity or offer

“To avail all these benefits, just register online.”

• 
  Source of definition: Oxford Learner’s Dictionaries,
  
  These terms may not necessarily be a part of legalese, but they can be present in contracts. That is why it is important to be proficient in the dialect you are translating into.

‍Typical Wording Used in Contracts

It is not enough to be proficient in the language of the contract, it is important to know the typical wording used in the country of the contract.

For example, when dealing with documents drawn up in Brazilian Portuguese, you might come across an ‘instrumento particular de contrato de prestação de serviços’. Although this could technically be rendered in English as a literal ‘private contract instrument for the provision of services’, that would not be the standard way of referring to a ‘service agreement’.

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As you can see, certain words add no meaning to a sentence. They are only present in contracts due to historical conventions. These can be added/removed without prejudice to the meaning of the sentence or to contract enforcement when they reflect common practices of contract writing in a certain language or country.

Some legal doublets and triplets are the perfect examples of pleonasms. For example: ‘alter or change’, ‘from now and henceforth’, ‘true and correct’, ‘indemnify and hold harmless’, ‘null, void and of no effect’. Each term of the doublet/triplet is a synonym and could be left out in the translation if there is no equivalent in the target language.

However, you should not trespass that limit. You can only adapt a translation if you are sure that your adaptation is accurate and will not affect the meaning or enforceability of the clause or contract.

A Few Resources for Contract Translation:

• The American Bar Association offers a legal glossary of terms commonly found in legal documents in the United States. You can take advantage of reliable glossaries to compare definitions across languages.
  
  
• The United States Courts’ website also offers a glossary of legal terms.
  
  
• ProZ.com is very useful when it comes to resources for translators. Besides extensive translation dictionaries and glossaries for specialized terms, it also features KudoZ, a very popular network where translators can ask questions that are translated by other professional translators.
  
  
• DeepL claims to be the world’s most accurate translator and to be 3x more accurate than its closest competitors. DeepL is based on artificial neural networks and has been trained with using the database from Liguee.

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• Bureau Work’s powerful translation management system features sophisticated technology, ensuring translation consistency, providing alternative translation options and flagging potential semantic errors.

‍Where Can I Find Qualified Translators To Translate My Contracts?

It is not difficult to fall into the pitfalls that exist in the translation business. Because of that, legal translation must be taken seriously.

If you are looking for a document translation service that is reliable and has a proven track record of success, please check out this article that we have prepared with the 10 best document translation companies.

Among the popular translation services available in the market, Bureau Works offers the best legal translation services due to its combination of skilled linguists and proprietary technology. Bureau Works’ linguists are experts in the translation of commercial agreements and contracts, court and immigration documents, business content, among others.

If you are a translator yourself and skilled enough to translate your own legal documents, you should consider getting a legal document translation software, and here’s why. But do not try to cut corners with free document translation software as this will most likely jeopardize your business, your clients and even yourself. On top of that, you are very likely to end up having to pay the hidden costs of free document translation software.

DISCLAIMER: The information contained herein does not constitute legal advice. For legal advice, please consult an attorney.

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