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No pay = no liability?
Thread poster: Samuel Murray

Samuel Murray  Identity Verified
Netherlands
Local time: 00:47
Member (2006)
English to Afrikaans
+ ...
Aug 31, 2008

G'day everyone

When I was a translation student there was this belief that if a translation is not paid for, then there is no liability for the translator if something goes wrong. The idea is probably akin to the idea that lawyers who are paid $1 are legally safe to keep their clients' details confidential. In the same way, it was believed that if you charge a small fee, you are still as liable for damages as if you had charge a high fee... but if the job was truly pro bono, then there is no liability.

Has anyone heard something similar? Is there any truth in it?

Thanks


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Sergei Leshchinsky  Identity Verified
Ukraine
Local time: 01:47
Member (2008)
English to Russian
+ ...
many things are done pro bono... Aug 31, 2008

... shall we not be responsible for them? One should be responsible for the job done, not for the money received.

[Редактировалось 2008-08-31 13:37]


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 23:47
Dutch to English
+ ...
Depends on the legal system and type of liability Aug 31, 2008

Some legal systems require consideration for a contract to come into being - some however do not require that consideration to be what is known as valuable consideration.

The fact that there may not be contractual liability does not mean a case could not be made on other grounds, such as in tort (in SA: delict) or on some form of statutory liability.

Private international law issues (conflicts of laws) would also come into play.

It's simply not possible to answer the question here wthout knowing the specifics if and when such a case arises and then to do so would be against site rules as it would then be construed as giving legal advice





[Edited at 2008-08-31 13:50]


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Ken Cox  Identity Verified
Local time: 00:47
German to English
+ ...
with lawyer-linguist Aug 31, 2008

exactly what I wanted to say

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Luis Arri Cibils  Identity Verified
Local time: 18:47
Member (2003)
English to Spanish
+ ...
For U.S. lawyers Aug 31, 2008

No general answer is possible, as it has already been said.
In the U.S., and for lawyers, the ABA site says this:

Many senior lawyers do not perform pro bono work because they do not carry personal malpractice insurance. However, to combat this very problem, many existing pro bono programs carry their own malpractice insurance for volunteers. Accordingly, a volunteer senior lawyer performing pro bono work through such a program is automatically covered against malpractice liability. In addition, if a senior lawyer wishes to perform pro bono work outside of insured programs, the senior lawyer can always choose to fund a personal malpractice insurance policy as well. Lawyers in need of malpractice insurance coverage for their pro bono activities should contact existing pro bono programs in their area to inquire about the existence of such coverage.
http://www.abanet.org/legalservices/probono/senior_lawyers.html#insurance


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Henry Hinds  Identity Verified
United States
Local time: 17:47
English to Spanish
+ ...
No Liability Aug 31, 2008

From what I have seen up to now, the issue of professional liability of translators is a moot point. Whevever the subject comes up, for instance the need for insurance, I always ask this question:

Does anyone know of a case in which a translator has become subject to professional liability?

So far I have yet so see any response.


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Luis Arri Cibils  Identity Verified
Local time: 18:47
Member (2003)
English to Spanish
+ ...
As always, it all depends Aug 31, 2008

Dear Henry,

I have to agree with you that up to 1999, the date of that document often cited as stating that there is no record that a freelance translator was ever sued in a US court, there is no such a record. But, as you know, not all court cases are reported, and I do not know whether there has been any case where the translator or his / her insurer settled out of court, something that is in itself confidential, or the case was decided in a lower court, for example, a small claims court, not of record. Further, I do not know of any full study after that date, although I must recognize that I was unable to find any case in the Internet. But then, this is no guarantee that none exists.

In addition, Samuel was asking about a general case, any liability. Are you sure that in a generic jurisdiction a translator would be able to claim he or she is not liable if he or she did not comply with his or her promise of translating a document by a given date just because he or she was doing it pro bono? Can a translator who has promised to a non-profit organization to do a translation not do so because afterwards a client offered him a 15 cents per word? Can I, after promising a non-profit that I would translate their documents, do it whenever I please, since after all it is just volunteer work? Do remember that in the US if you have promised to a church that you would contribute some amount, you might be liable for that amount. Can you, just because you are volunteering to do it pro bono, disclose the information in the document to a third party? Aren’t you in that case liable?

Further, does the fact that there have been no litigation regarding freelance translator’s liability imply the same non liability for an agency? Is a freelance translator who promises directly to do something to a "direct client”, albeit pro bono, any different than an agency?

If your contract states, as many do, see the Internet, that your liability is limited to certain amount, maybe the cost of the translation, does that mean that your are not liable, or just, simply, that your liability is contractually limited and that case does not go to court? Does the fact that there has not been any case against translators mean that they are not liable or, just simply, that there has been no case so far? Until the 60s or 70s there was no case against tobacco companies.

I, as you, always state that, to my knowledge, there has been no case on the record, in the US, against freelance translators. But I rush to add, as mutual fund brochures do: “Past performance is no guarantee of future performance”.

In addition, even all the potential mistranslation disasters, they usually do not occur in real life. Having E&O insurance might not be justified at all. In fact, I would hope that this type of insurance never becomes common among translators, because if it does, litigation against translators will become commonplace. We will be just another type of “deep pocket” targets for suing.

Regards,

Luis


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Henry Hinds  Identity Verified
United States
Local time: 17:47
English to Spanish
+ ...
Thanks, Luis Sep 1, 2008

Your response certainly is much more authoritative than no response. And just because it hasn't happened does not mean it can't. But so far, anyway, it would be safe to assume that we are in the clear.

It could also be that translators have been left alone because they are not generally regardad as having "deep pockets".


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Spencer Allman
United Kingdom
Local time: 23:47
Finnish to English
Consideration Sep 1, 2008

I am not a lawyer but in English law there is something called consideration. In this case I think it means that unless is a job is paid for in one form or another then there has not been a valid contract - and thus, I suppose, no liability. I would be interested to hear what others have to say.

(I just realised that some else mentioned this)

spencer


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Narasimhan Raghavan  Identity Verified
Local time: 05:17
English to Tamil
+ ...
I believe in no pay is no liability but this thread makes me to think and reach a conclusion Sep 1, 2008

This is what I posted on another thread dealing with free jobs. See
http://www.proz.com/topic/114086?pg=e

Can volunteer translations *damage* your bottomline? Yes, it can! 5:39am

Even voluntary translators may not be free from liability as can be deduced from this other ProZ.com thread at

http://www.proz.com/forum/money_matters/114097-no_pay_=_no_liability.html

Personally I am against doing any free work of any kind.

That is one reason, I don't even look at KudoZ questions that are non-pro or are marked "not for points".

When such is my stand even for KudoZ questions, you can imagine my reaction to free work.

And now this thread just reinforces my stand.

No free jobs from N. Raghavan.

Regards,
N. Raghavan


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xxxMarc P  Identity Verified
Local time: 00:47
German to English
+ ...
No pay = no liability? Sep 1, 2008

It could also be that translators have been left alone because they are not generally regardad as having "deep pockets".


That is one possible reason.

Another reason why you might not have heard of a case is that it is quite likely that such cases are settled before they go to court, and none of the parties involved - translator, customer, insurer - has any interest in the issue being made public.

An argument that I have heard made for indemnity insurance is in fact that the insurer's lawyers ward off unjustified claims at an early stage.

If you are really interested in finding out, Henry, why don't you ask the insurance companies themselves?

On the subject of "no pay = no liability": a consideration will frequently serve as proof of a contract, but no consideration is not necessarily proof of no contract. In fact, one reason why free/open-source software is often distributed with comprehensive licences is to protect the software authors against liability claims.

Marc


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Luis Arri Cibils  Identity Verified
Local time: 18:47
Member (2003)
English to Spanish
+ ...
Smelling the roses, while it lasts Sep 1, 2008

Henry Hinds wrote:

Your response certainly is much more authoritative than no response. And just because it hasn't happened does not mean it can't. But so far, anyway, it would be safe to assume that we are in the clear.

It could also be that translators have been left alone because they are not generally regardad as having "deep pockets".


Absolutely. At least as a group, we are safe to assume we are in the clear, although we cannot assume that one of us might not be hit.

There might be many reasons why there have not been lawsuits against translators. Maybe no one has ever been actually damaged to any significant extent in spite of all the potential risk associated with faulty translation. We would like to believe that our work is so important that we can really hurt somebody if we do not do it properly. True, but our work goes through so many hands that it is possible that our mistakes will be detected before any damages are inflicted.

The only case I know where there was a dispute was the translation of a document where the name of the client's principal was misspelled. The client had, or wanted, to reprint the entire document. But, who was responsible? The agency, the translator, the editor, or even the end/client? Is the end-client incapacitated to detect that their boss' name was misspelled? Can a factory use a part without testing its condition, at least from a statistical point of view?

Further, what is a mistranslation? What are the standards to judge it? At this time, I can only say that mistranslation is like pornography. I'll know a mistranslation when I see it.

Further, given that an attorney's hourly rate starts probably at 300 or more, how big should the damage be to litigate it, or worse, appeal a trial court decision so it appears in the reporters?

And, as to risk, let's consider the insurance premiums for translation malpractice, whatever that is: a few hundred dollars a year, two or three or perhaps more orders of magnitude lower than the premium rates for other "riskier" professions (law, medicine).

Of course, this is the question. E&O insurance premiums for translation work is cheap. Some/many can still afford it to "sleep easy". But, if all translators get it, we will become deep pockets, a nice target for justified and frivolous lawsuits. Insurance aint gonna be cheap then.

Still, "Past performance is no guarantee of future performance". Just my disclaimer.

Saludos,

Luis

[Edited at 2008-09-01 21:26]


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