legal translations, sworn translations and jurisdictions
Thread poster: xxxLia Fail
xxxLia Fail  Identity Verified
Spain
Local time: 07:38
Spanish to English
+ ...
Jun 13, 2004

I translate contracts but am not a sworn translator. Given that the jurisdiction mentioned in contracts, in my case, are almost invariably Spanish ones, it's patently clear that the Spanish text prevails over the English translation, which is effectively 'for information only', since if the parties end up in court, it will be a Spanish court with Spanish-speaking judges, etc.

Yesterday I got an enquiry to translate a contract. Speaking on the phone to the potential client, it turns out that the jurisdiction is Spain & Argentina, so I pointed out to him that this translation would be 'for information only'. Then he deliberated a moment and thought that maybe he would need a sworn translation (which I told him I couldn't do). This brought us on to the subject of whom he was organising the translation for (this is where I get intrigued) and turns out the other party had asked for a translation in English. This is not the first time I have discussed these issues with clients, but I am not too clear about it all, especially as the clients themselves seem confused.

Questions as follows:

if I was signing a contract in Japanese, for example, in my own interest I wouldn't want the translation provided by the OTHER party, even if for information only, simply becuase I would want an independent party to give me their interpretation of the contract. So what is the value of these translations? In other words, isn't it really a waste of time and money, as the correct thing to do is for the party not knowing the language to get his/her own translation in the best defence of his/her own interests?


as for sworn translations, I can understand a sworn translation from Spanish to English - for example - being performed becuase for whatever reason it needs to be used in an English-speaking jurisdiction. In my example above, if the contract of the individual who contacted me was to be governed by an English-speaking jurisdiction, then he would require not a translation 'for information only' but a sworn translation, with the English language version prevailing in court.

Either way, surely it's not his place to be organising the translation of a contract in his language - whether sworn or otherwise - for the OTHER party who doesn't understand the original language?

I hope I have made myself clear, but I have found myself dealing with client doubts on this issue on a couple of occasions, so would like to thrash the whole business out and hear opinions from others:-)

TiA:-)

[Edited at 2004-06-13 09:16]


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Anjo Sterringa  Identity Verified
Spain
Local time: 07:38
Member (2003)
English to Dutch
+ ...
Sworn translation and jurisdiction are COMPLETELY different issues Jun 13, 2004

Hi Ailish!

A sworn translation does not make the contract more 'valuable' - it is often required in countries like Spain ('notarized' as well, on top of that) so that it is more difficult to contest (the existence, the text as is) in court.
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BUT say you have a sworn translation of a Spanish contract into (UK) English, this only means that the English version says "exactly" the same as the Spanish version. It is still: for information only!

It does not mean that it is understandable for somebody funtioning within the English legal system, as the concepts between Spain and the UK vary - the things that are standard in a certain contract may vary as well.

So in my opinion if two parties want to change the jurisdiction e.g. they want to apply British law on a contract between parties that started out in Spanish they will need a contract that is drawn up by a (British) legal expert.

That has nothing to do with translating anymore. I understand your thinking, because I always try to make clear that clients should add which law applies, which version prevails and that a translation only refers to the original (in contracts) and that the concepts may be very different.
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Of course the above is very general. Many, relatively simple contracts mean the same or are at least understandable in other languages and/or for other forums/jurisdictions (e.g. your own general conditions as a translator)(and even that has some difficulties - but then I was trained as a lawyer so I can see difficulties everywhere).
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On the other side, take a subject like timeshare - very difficult because you have to realise that it does not even concern the same kind of right inside Europe - in some countries you own part of a property (Belgium), in other countries it is just a right of use, not unlike renting a property (Spain, although there are 2 possibilities here).
Then in some countries they increased the consumer protection (UK):
An amendment to the Timeshare Act 1991 came into force on 31 October 2003. The amendment ensures that consumers receive clear and accurate information on their right to cancel timeshares when they sign a contract. Cancellation information should now be included in the contract instead of on a separate form.A minimum 10 day cooling off period in which to cancel the contract; in the UK this cooling off period is 14 days.
----------------------------------------------- so when translating a contract like that you have to be very careful and hope your client knows what they are doing!
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As to who should provide the contract in the other language - I seem to recall that if you want to sell a product in a certan country you (the seller) have to provide information/a contract/ user's manual in that language.

Have a nice Sunday (again)!

[Edited at 2004-06-13 13:08]


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Luca Tutino  Identity Verified
Italy
Local time: 07:38
Member (2002)
English to Italian
+ ...
From my past experience Jun 13, 2004

I am not sure I understood your question correctly. However, from my past experience as Italian TV programmes distributor, I remember that if a foreign client negotiated the contract to be in his language, e.g. French, then the French contract would carry all the signatures, and would not be for information only.

For the jurisdiction, there could be different cases, mostly depending on what is specified within the contract about it, about forum for litigation, etc.

Luca


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xxxLia Fail  Identity Verified
Spain
Local time: 07:38
Spanish to English
+ ...
TOPIC STARTER
reply Jun 13, 2004

[quote]anjoboira wrote:


BUT say you have a sworn translation of a Spanish contract into (UK) English, this only means that the English version says "exactly" the same as the Spanish version. It is still: for information only!

quote]

Yes, I understand that, but in an English court, what version will they use? Surely the English version?????? With teh guarantee that it has been 'sworn' and therefore is a reliable translation.



[quote]anjoboira wrote:
So in my opinion if two parties want to change the jurisdiction e.g. they want to apply British law on a contract between parties that started out in Spanish they will need a contract that is drawn up by a (British) legal expert.

quote]

Precisely, the only valid contract is one drawn up in the language of the jurisdiction.

My problem is dealing with clients who seem to fail to understand that.


Also, I can understand that if a contract jurisdiction is to be - for example - English, then the prevailing contract is one in English, whether a translation of a documnent drawn up by Spanish legal expert or an original document, i.e a contract drawn up by a Briotish legal expert.

I think I see, though, waht you mean, that 'sworn' really only acts as an additional guarantee. The language will be the one of the jurisdiction.

All teh same:
I don't understand why Party X translates - even if for info only - on behalf of Party Y, as surely a smart Party Y will get his/her OWN translation.... I am curious becuase it seems to happen so often.


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xxxLia Fail  Identity Verified
Spain
Local time: 07:38
Spanish to English
+ ...
TOPIC STARTER
reply 2 Jun 13, 2004

Luca Tutino wrote:

.... if a foreign client negotiated the contract to be in his language, e.g. French, then the French contract would carry all the signatures, and would not be for information only....

Luca


But WHICH jurisdiction? I can only imagine it's the French.


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Anjo Sterringa  Identity Verified
Spain
Local time: 07:38
Member (2003)
English to Dutch
+ ...
Crossborder transactions.... language may vary but original prevails Jun 13, 2004

Ailish Maher wrote:
Yes, I understand that, but in an English court, what version will they use? Surely the English version?????? With the guarantee that it has been 'sworn' and therefore is a reliable translation.
I think I see, though, what you mean, that 'sworn' really only acts as an additional guarantee.

If we return to your original example: Spanish contract, translated into English - the applicable law is Spanish and the Spanish courts will say what they think, based on the Spanish version.

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Then we move on to a change of venue, if these parties agree that an English court should settle any disputes. Then of course the contract will be (re) drawn up, or adapted (by English legal experts), to fit this change of legal system. The main agreement will then be in English.

Precisely, the only valid contract is one drawn up in the language of the jurisdiction.


Not quite true: the validity of the contract is not the same as which language/text prevails, e.g. in cross-border transactions you may sign a contract in your own language, while jurisdiction is in another country.
To return to my earlier example: An English company sells real-estate in Spain to English, Belgian, German etc. citizens. Applicable law: Spanish law, contract languages: many! (the mind boggles)
And even then, there are many (trade law and other) disputes on where to dispute.....
See: http://www.law.kuleuven.ac.be/jura/35n4/struyven.htm

As there are more and more (European) regulations on consumer protection that influence these contracts, and even plans for European contract law, there will certainly be a convergence (as to contents).
This is a nice small paper on comparative law and European (plain) legal language: http://www.rechten.unimaas.nl/ozic/LegalIntegration/paper%20Heutger.pdf.

I don't understand why Party X translates - even if for info only - on behalf of Party Y, as surely a smart Party Y will get his/her OWN translation.... I am curious becuase it seems to happen so often.


How often do you click "I accept" on an online General Conditions form (do you ever read them? I printed out more than 50 pages from a Dutch airline and gave up there and then - also an online 'click' form...) in any language without even knowing which legal system applies? You enter into contracts all the time, it is impossible to have them all translated or even to fully understand the implications.
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I do agree that companies will probably have the original version reviewed as well as the translation, or translate it themselves. If it is a complicated contract, that is...

Something to bear in mind is the following though:
There are two things wrong with almost all legal writing. One is its style. The other is its content That, I think about covers the ground
Fred Rodell, "Goodbye to the Law Review", 38 Va. L. Review (1936)

That's it!




[Edited at 2004-06-13 14:03]

[Edited at 2004-06-13 14:23]


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