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Is this clause a normal practice?
Thread poster: Cecilia Coopman, M.A. in Translation

Cecilia Coopman, M.A. in Translation  Identity Verified
United Kingdom
Local time: 16:38
English to Spanish
+ ...
Mar 19, 2003

Dear colleagues,



A translation agency sent me a purchasing conditions agreement to be signed which is normal in this type of business. However, there is one clause that I am not sure if I should agree with. Here it is:





The subcontractor is liable for the work carried out, and (Translation Agency) may hold the subcontractor liable in case of professional misconduct.



Please let me know your opinions. Would you sign such agreement? Is this normal practice? what does professional misconduct mean here?



Thank you very much indeed.



Cecilia


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Jacek Krankowski  Identity Verified
English to Polish
+ ...
Please see Mar 19, 2003

http://www.proz.com/?sp=bb/viewtopic&post=55787#55787

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Mats Wiman  Identity Verified
Sweden
Local time: 17:38
Member (2000)
German to Swedish
+ ...

MODERATOR
Do not sign silly clauses Mar 19, 2003

It\'s a ridiculous clause that should be fought on every level everywhere.



Let me take the opportunity to publish our recently written disclaimer trying to establish a standard for the relation between translator and the market:





Our view



Translation has been our livelihood since 1996



We always try our hardest to give you translations

that are correct in both content and style.



But we - like all free-lance translators - cannot be experts in every area of

knowledge, nor command every style of language.



We therefore expect the translation agency or the client to take responsibility for

and to arrange the proofreading and examination of the factual content

- at their expense.



As for taking responsibility for the content of the translated text, we are convinced that

that final responsibility can only be taken by the the party who has access to and command of the knowledge in the actual field - namely the party who orders the translation to be done.

Consequently, the translation agency or the translator cannot be held accountable.



If text errors occur, the only acceptable liability of the translator

is a reduction in the translation fee.



If you accept our view of this, we know from experience

that our collaboration will be productive and agreeable.



Our best translations have been based on this simple principle plus

explicit permission for us to work in close collaboration with the client

and/or their representation or distributors in Sweden.



Mats & Sylvia Wiman



I\'d wish we all could unite around these thoughts and make these thoughts known to the agencies and their clients in an effort to discourage unfair clauses and insulting behaviour from our counterparts.



Best regards



Mats J C Wiman

Übersetzer/Translator/Traducteur/Traductor > swe

http://www.MatsWiman.com

http://www.Deutsch-Schwedisch.com

http://www.proz.com/translator/1749 Deu>swe Proz.com moderator

eMail: MatsWiman@swipnet.se

Träsk 201

SE-872 97 Skog

Tel : +46-612-54112

Fax : +46-612-54181

Mobile: +46-70-5769797



PS

Also see:

http://www.proz.com/?sp=bb/viewtopic&topic_id=7555&forum_id=19



http://www.proz.com/?sp=bb/viewtopic&topic_id=7374&forum_id=19



http://www.proz.com/?sp=bb/viewtopic&topic_id=7016&forum_id=19



[ This Message was edited by: MatsWiman on 2003-03-19 11:39]


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xxxMarc P  Identity Verified
Local time: 17:38
German to English
+ ...
Another question Mar 19, 2003

The direct answer to your question is no, this clause is not normal practice. Even if you are not a legal expert, it should be obvious that the clause is not enforceable. And assuming that you are responsible for the work you deliver, the clause says nothing about how far any liability extends and would therefore be worthless, at least in some jurisdictions.



By the same token, there is no clear definition of \"professional misconduct\" in the translation profession. A sensible contract would in my view attempt to regulate that deficit by naming a professional body as arbiter in the event of a dispute.



However, I think that what you are really asking is whether you are in any way responsible for the work you deliver. As you can see from Mats reply, there is a school of thought that says you are not (though Mats doesn\'t make it clear whether his disclaimer also applies to work done for end clients). On the other hand, the UK\'s ITI recently moved to make professional indemnity insurance compulsory for its members, and although that scheme has since been withdrawn, it is nonetheless an indication that one professional body, or at least a majority on one professional body\'s administrative council, believes that translators are or should be accountable for their work.



It is worth considering what liability you think you have if you don\'t sign any agreement. I wonder how many translators think that to absolve themselves of any responsibility, they simply need to be careful not to sign anything.



The clause strikes me in fact as being quite generous on the customer\'s part. You are, after all, not being held accountable for any mistakes, only for professional malpractice. There is a world of difference between the two.



If you are unhappy about such clauses, you have another option besides Mats\', and that is to suggest using the standard contract issued by a translators\' association. The ITI has such a contract, and I presume other associations do too.



Marc



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