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Including a clause in a contract to say that the contract in original language is the binding one?
Thread poster: Catarina Aleixo
Catarina Aleixo  Identity Verified
Portugal
Local time: 20:25
Member (2007)
Portuguese to English
Dec 12, 2007

Hi everyone. I occasionally translate service provision contracts from Portuguese to English and remember, on a couple of occasions, seeing clause/paragraph in a contract stating that should any litigation arise in relation to said contract that the contract in its original language would prevail (rather than its translated version).

Does anyone know anything about this? I have searched my database and can't find an example of this clause/paragraph, but am certain I translated it at some point (pre-Trados).

Does anyone have an example clause that could be inserted into translated contracts? Thanks everyone!

[Edited at 2007-12-12 18:41]

[Edited at 2007-12-12 18:43]


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lexical  Identity Verified
Spain
Local time: 21:25
Portuguese to English
I found this among my TMs Dec 12, 2007

Hope it helps...

Caso sobrevenha qualquer dúvida, dificuldade de interpretação ou contradição entre as duas versões [referidas no número anterior], prevalecerá sempre a versão em língua portuguesa.

Or were you looking for the English version?

In the event of any doubt, difficulty of interpretation or contradiction between the two versions [referred to in the previous paragraph], the version in Portuguese shall prevail in all cases.

[Edited at 2007-12-12 19:26]


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Catarina Aleixo  Identity Verified
Portugal
Local time: 20:25
Member (2007)
Portuguese to English
TOPIC STARTER
Thanks! Dec 12, 2007

Sounds exactly like what I was looking for and definitely rings a bell. Can you tell me if it was included as a para. in the "Disposições finais" or as a seperate clause?

On a slightly different note does anyone know if this is legally binding?


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lexical  Identity Verified
Spain
Local time: 21:25
Portuguese to English
not sure.. Dec 12, 2007

...but I think generally it was part of "Disposiçoes finais". I've translated similar sentences dozens if not hundreds of times - with variations in the wording of course. I'm not a lawyer but I would imagine that such a clause is legally enforceable, otherwise it would not be so common.

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Giulia TAPPI  Identity Verified
France
Local time: 21:25
French to Italian
+ ...
It is not up to you to insert a clause in a contract Dec 12, 2007

If this clause exists in the original, you translate it; otherwise you should contact the client, but in no way can you add something to a contract not written by you.
And I personally had to translate a contract saying that the two versions were both to be considered as originals.
That is why translating a contract is such a responsability!


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Catarina Aleixo  Identity Verified
Portugal
Local time: 20:25
Member (2007)
Portuguese to English
TOPIC STARTER
Thanks but I'm way ahead of you there... Dec 12, 2007

I did not say I was inserting anything in a contract. I am working with my client on this and told them I had seen something similar in previous contracts I had translated. They asked me if I could find an example and hence my question. They will then contact their own lawyer in order to have it inserted - if it is considered relevant. I am a translator not a lawyer and know my limitations as well as my colleagues do.

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Catarina Aleixo  Identity Verified
Portugal
Local time: 20:25
Member (2007)
Portuguese to English
TOPIC STARTER
Thank you lexical - very helpful Dec 12, 2007

Thanks again.

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Jenny Forbes  Identity Verified
Local time: 20:25
Member (2006)
French to English
+ ...
Often found in French contracts Dec 13, 2007

Catarina Aleixo wrote:

Thanks again.


Hullo Catarina,
I translate a lot of contracts and have quite often found such a clause in them - particularly French contracts - something like "In the case of a dispute, the French original shall prevail", so I presume it must be normal and legally enforceable. Perhaps Lawyer-Linguist could enlighten us?
Kind regards,
Jenny.


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xxxLia Fail  Identity Verified
Spain
Local time: 21:25
Spanish to English
+ ...
My logic Dec 13, 2007

Catarina Aleixo wrote:

Sounds exactly like what I was looking for and definitely rings a bell. Can you tell me if it was included as a para. in the "Disposições finais" or as a seperate clause?

On a slightly different note does anyone know if this is legally binding?


My logic on this is the following, although I don't know about the legality:

There is always a sentence that refers to the jurisdiction. If I'm translating from ES or CAT, this sentence will refer to the Spanish jurisdiction (eg, a court in Madrid, LLeida, etc). Logically, therefore, the official language of Spain being ES (or CAT in Catalonia) the language of the valid contract must logically be Spanish and not English, as otherwise it would be equivalent to assuming that judges, clerks, lawyers etc in Lleida or Madrid all speak perfect EN:-)

Hence, is there any real need for such a sentence?

I usually put it as a translation note if I do include it. I have also seen it as a clause.


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Paul Lambert  Identity Verified
United States
Local time: 13:25
French to English
+ ...
Try this one Dec 13, 2007

Hi

Yes, I have seen a lot of these, the most common being (in my experience):

This is a free translation from the original in XXX. In the event of discrepancy, the XXX-language version prevails.

Hope it helps!

Paul


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Catarina Aleixo  Identity Verified
Portugal
Local time: 20:25
Member (2007)
Portuguese to English
TOPIC STARTER
I wonder... Dec 13, 2007

I wonder whether it protects us as translators in any way... just out of curiosity. If it does, I would certainly encourage my clients to insert it under the advice of their lawyer, of course.
I'm not sure that the jurisdiction clause would cover this as it does not usually mention language and discrepancies between the two versions. A difficulty could certainlya rise if the translated version of a contract gave a different impression to the original or was interpreted differently to the original and then affected the relationship between the parties involved. This would then become an issue of how the translation was interpreted rather than what the original said, if the clause/para was not included.
Any lawyers out there with an opinion?


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 20:25
Dutch to English
+ ...
Oversimplified answer Dec 13, 2007

Catarina Aleixo wrote:

I wonder whether it protects us as translators in any way... just out of curiosity. If it does, I would certainly encourage my clients to insert it under the advice of their lawyer, of course.
I'm not sure that the jurisdiction clause would cover this as it does not usually mention language and discrepancies between the two versions. A difficulty could certainlya rise if the translated version of a contract gave a different impression to the original or was interpreted differently to the original and then affected the relationship between the parties involved. This would then become an issue of how the translation was interpreted rather than what the original said, if the clause/para was not included.
Any lawyers out there with an opinion?


No reason why the clause in itself would not be valid - save and except anything specific in the applicable law that said otherwise. Contracts cannot be drawn contrary to the provisions of national law (among other things).

However, if valid, it would only be binding on the parties to the contract anyhow.

The translator is not a party to the contract.

In basic terms, if party A (English) commissioned a translation (into English) and acted on the translated version to his detriment in dealings with B (Portuguese), B could hold A to the Portuguese contract and A would be estopped in law from relying on anything in the English version to the contrary.

However, party A would still have a potential claim against the translator for his damage. The translator can't escape or limit liability simply because the original version takes precedence in a dispute. After all, the client commissioned it in the first place precisely because he can't understand the source.

Furthermore, if the clause is in a contract, it's there first and foremost to protect the source language party, not the party commissioning the translation.

The translator can only limit or attempt to exclude liability in his own contract with the client, e.g. by limiting any liability to the invoice amount for the job, by excluding consequential/indirect damage etc.

And no, the jurisdiction clause would generally not be enough (although it may constitute strong evidence). Think Belgium, think South Africa, and other countries etc with numerous official languages. Courts are generally not keen to read things into contracts that are not there in black and white, regardless of the system.

Just one more reason why translation in general - and legal translation in particular - shouldn't be taken lightly.

Finally, since legal advice is not permitted in the forums, please take this merely as the opinion of a translator who just happens to be a lawyer.

Hope this helps
Debs






[Edited at 2007-12-13 18:25]


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Catarina Aleixo  Identity Verified
Portugal
Local time: 20:25
Member (2007)
Portuguese to English
TOPIC STARTER
That's very interesting info... Dec 13, 2007

and very clearly put. In the particular case I am thinking of the source language party is actually commissioning the translation, so, if I understand you correctly, it would make a certain amount of sense for them to include the clause.
Interesting discussion.


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 20:25
Dutch to English
+ ...
Possibly Dec 14, 2007

Catarina Aleixo wrote:

and very clearly put. In the particular case I am thinking of the source language party is actually commissioning the translation, so, if I understand you correctly, it would make a certain amount of sense for them to include the clause.
Interesting discussion.


In that case, it would probably be a good idea.

In practice though they may be asking for it (following negotiations and just because they are attending to having the contract drafted), but not be the ones actually paying for it (directly or indirectly). The source party is going to recoup the costs somewhere. To commission in law, you'd have to be the one actually asking and paying. Could be argued the source party asked but on the target party's behalf. Would be decided on the actual facts of the case, if there was ever a dispute.

If I was paying for it, as the party using the translation, I'd not be overly happy about its inclusion, as it could be to my detriment.

And just imagine a situation in which that particular clause was mistranslated (e.g. languages swapped). That question is more complicated in law. I'd have to think about it.

On the other hand, if the source and target were held to have equal force in law and the court subsequently found the two to be incompatible - and witness testimony from the parties didn't help as they both stuck to their guns - it could be argued the parties never reached consensus, and the contract could be fully or partially set aside.

That would be an entirely different outcome.

So yes, interesting discussion.

[Edited at 2007-12-14 06:14]


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Daniel García
English to Spanish
+ ...
I think it is very useful to have it Dec 19, 2007

Lia Fail wrote:

Catarina Aleixo wrote:

Sounds exactly like what I was looking for and definitely rings a bell. Can you tell me if it was included as a para. in the "Disposições finais" or as a seperate clause?

On a slightly different note does anyone know if this is legally binding?


My logic on this is the following, although I don't know about the legality:

There is always a sentence that refers to the jurisdiction. If I'm translating from ES or CAT, this sentence will refer to the Spanish jurisdiction (eg, a court in Madrid, LLeida, etc). Logically, therefore, the official language of Spain being ES (or CAT in Catalonia) the language of the valid contract must logically be Spanish and not English, as otherwise it would be equivalent to assuming that judges, clerks, lawyers etc in Lleida or Madrid all speak perfect EN:-)

Hence, is there any real need for such a sentence?

I usually put it as a translation note if I do include it. I have also seen it as a clause.


Hi, Lia,

Such a clause is actually quite important.

With the clause, if there is any dispute about the contract and the dispute is based on the fact that there are contradictions in the EN version and in the ES version, a Spanish Judge would have to rule based on the EN text.

Of course, Judges do not have to know EN but judges do not know about many things and that's why they use "experts" ("peritos" in ES) to assist them in their rulings...

Unless there is any law in Spain that contracts have to be drafted and signed in one official language (and hence, the EN version probably would not be valid, not matter what clauses you insert).

Of course, in the case of CAT and ES is a bit different because both CAT and ES are official languages in Catalonia but not in Madrid.

Daniel


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