Four legal translators report on a specialist seminar on the language of drafting contracts, and the benefits of training in specialist areas
Four of us attended Ken Adams’ ‘Drafting Clearer Contracts’ seminar at University College London’s Faculty of Laws on 5 November. Ken is a legal consultant, writer, speaker and all-round contracts guru, and we arrived to find a complimentary copy of the latest edition of his A Manual of Style for Contract Drafting on our desks, together with a workbook for the day containing several practical group exercises to spark conversation.
Practical and pragmatic, his book provides an analytical framework that works just as well for translators as for drafters. One issue that both lawyers and legal translators have to grapple with when drafting or translating contracts is the consistent use of verb structures for different types of contractual clauses (such as obligations, prohibitions, declarations or policies). A recurring issue when translating out of German, for instance, is how to express obligations in English in cases where German legal language uses the simple present tense (Gebotspräsens). In English, the translator can choose between ‘shall’, ‘must’ or ‘will’, among other options. Ken offers a set of clear and well-thought-out rules regarding the analysis and use of these terms. Although not a huge fan of ‘shall’, he does advise using it when a party ‘has a duty’ to do something.
Clarity, precision and consistency
While the course focused on the language of contracts, the strategies we looked at for producing clearer contracts, such as avoiding ambiguity and redundancy, can be applied when translating other types of legal documents.
A key theme of the seminar was the use of what Ken describes as ‘optimal language’ to avoid confusion and ensure the message is understood. In other words, ‘be clear, precise and consistent’, a relevant message for translators and legal drafters alike! This is where techniques for eliminating redundancy come in, such as cutting out unnecessary words (using ‘before’ instead of ‘prior to’, for example) or avoiding wordy phrases when one or two words suffice (‘under’ for ‘under the provisions of’).
As translators, it is our job to convey the source text message in the translation accurately, in a way that is appropriate for the intended audience and purpose, and meets any requirements for format and style. Ken recommends checking with fellow drafters and colleagues before introducing changes to contract templates. Likewise, we would be wise to check client preferences before imposing our own stylistic choices. While it is not acceptable to eliminate words in an attempt to disambiguate source text or to suit our own stylistic preference, there are techniques we can adopt to avoid redundancy without altering meaning or losing the legal function and effectiveness of the source text. Consider, for example, if any meaning is lost by omitting ‘hereinafter’ before a defined term, or whether replicating a doublet or triplet in the translation serves any purpose when one word adequately expresses meaning or does not make the text less effective (such as ‘uphold’ for ‘estimar y estimamos’ in a Spanish judgment). Using two quasi-synonyms may even confuse the reader if there is no equivalent in the target language legal system (for example, ‘devise and bequeath’), or the legal system tends not to use synonym strings. All this is to say, if contract drafting is complex, our job is no easier. Ken holds translation in high esteem; indeed he often sees his own job as translating from old-fashioned legal English to ‘standard’ English.
Just as thought-provoking as the content, though, was the chance to hear the diverse views of the 35 law professionals present. Many were younger lawyers from non-traditional legal firms and start-ups in search of a more consensual and ‘democratic’ approach to contract negotiation and drafting. Their contributions and comments provided some real-world insights into how lawyers think and talk about the law, and Ken’s quick wit meant that discussion points were never dry.
Having split off during the seminar to make the most of networking, we met up afterwards. We all agreed that this was just the sort of training we should be seeking.
First published in the Institute of Translation and Interpreting (ITI) Bulletin on 1 March 2019. Ken Adams will give his seminar again at UCL Law Department in November 2019.
Jenni Radford’s professional background is in the international business and English and Anglo-Spanish legal sectors. She is a freelance translator specialising in legal and business translations from Spanish into English. You can contact her at firstname.lastname@example.org
Richard Lackey translates legal and business texts from Spanish and French to English, now as Contractually Speaking. Contact him at richard@ contractually-speaking.co.uk or via Twitter, @ContractSpeak.
Terri White, MITI, Chartered Linguist has been translating from French and German into English, specialising in law, for 30 years. You can contact her at email@example.com.
Stefanie Kuepper is a non-practising English solicitor, with qualifications in German and English law and a Diploma in Translation, specialising in legal translations from German to English. She can be contacted at firstname.lastname@example.org.