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Consequences of late delivery
Thread poster: Max Zalewski

Max Zalewski  Identity Verified
United States
Local time: 20:33
Member (2009)
Spanish to English
+ ...
Apr 17, 2013

I recently hired a translator to do a 20k word project in the USA. We had a written agreement for a delivery date of both the final translations and the TM. The final translation was delivered 3 days late and the translator did not use a TM.

What consequences seem fair under these circumstances?

Thank you


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Kuochoe Nikoi  Identity Verified
Ghana
Local time: 02:33
Japanese to English
An incomplete agreement? Apr 17, 2013

If you had a written agreement specifying those terms, then surely you must have had penalties written into that agreement to cover non-compliance?

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Sheila Wilson  Identity Verified
Spain
Local time: 02:33
Member (2007)
English
+ ...
It's quite normal, IMO, not to have non-compliance clauses Apr 17, 2013

TransAfrique wrote:
If you had a written agreement specifying those terms, then surely you must have had penalties written into that agreement to cover non-compliance?

Very, very few of the agreements I've entered into in 13 years have had penalties; in fact most of them have just been an exchange of emails. But as I've never failed to comply, I don't know what would have happened.

It's difficult, Max. Did the translator keep you informed about possible delays? We're all human and things do crop up from time to time.

As for the lack of TM, that seems very odd. Are you sure this was a bona fide, experienced translator? I would have thought we all know what TM is and whether we can produce it or not. If this person doesn't have any explanation, I think I'd suspect they're just posing as a translator because they can speak a bit of a foreign language and needed the money.

Did you contact them here?


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Nicole Schnell  Identity Verified
United States
Local time: 18:33
English to German
+ ...
Well, which circumstances? Apr 17, 2013

Did you check in to ask for the status shortly before or on due date, and what was the reply? If the translator stated that he/she was running late, did you take any measures such as calling a second translator for help to speed things up? What caused the delay (sickness, technical difficulties, a beginner was hired for a job that was over his/head, etc.)? Was the use and/or the creation of a TM part of the PO? Did you communicate during the course of the project (which should be 2 weeks considering the word count)?

I am extremely hesitant when it comes to recommend "appropriate punishment". I am an outsourcer myself but I take pride in staying on top of the projects that I outsource. At times translators deliver late for various reasons but I will know in advance. I don't like surprises.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 03:33
English to Polish
+ ...
Some ideas Apr 17, 2013

As both a translator and a lawyer (although isn't legal advice), I believe a pay cut would be fair but trying to claim non-performance would be over the top (while perhaps doable in this or that jurisdiction). You can press the TM as a required receivable and that would be an easy ground for a fee reduction if he were to deny or fail to deliver it at all in the end. However, please note that a TM can usually be distilled from a bilingual file, so if he has given you a bilingual file it's only a matter of a couple of mouse clicks (just in case because this is slightly non-obvious). As for being 3 days late, you could probably charge him some for reasonable, predictable costs incurred from the delay or anything he was warned about the possibility of happening but an appropriate deduction for the delay alone would be extremely hard to think about without any concrete damage to show to a court.

On the basis of intuition and a sense of fairness I suppose you could claim at least the same value as whatever interest the translator would be entitled to if you defaulted on the payment. However, 3 days are


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Woodstock  Identity Verified
Germany
Local time: 03:33
German to English
+ ...
An unpleasant situation, indeed Apr 17, 2013

Sheila Wilson wrote:

As for the lack of TM, that seems very odd. Are you sure this was a bona fide, experienced translator? I would have thought we all know what TM is ...


Exactly this popped into my mind first, as well. What criteria were used to select this particular person for the assignment and exactly which conditions were specified?

I agree that we are human and unexpected events can always come up, but it's imperative to let the client know in plenty of time for him/her to take remedial action. I have no idea what would be appropriate without having more detailed information concerning the circumstances, as Nicole and Sheila point out very thoroughly. From the brief description it seems that there could have been a lack of clarity on both sides.


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Henry Hinds  Identity Verified
United States
Local time: 19:33
English to Spanish
+ ...
Not so Odd Apr 17, 2013

[quote]Sheila Wilson wrote:

As for the lack of TM, that seems very odd. Are you sure this was a bona fide, experienced translator? I would have thought we all know what TM is and whether we can produce it or not. If this person doesn't have any explanation, I think I'd suspect they're just posing as a translator because they can speak a bit of a foreign language and needed the money.


I think you would agree that I am not exactly an inexperienced translator, and I have never seen a TM in my life. In fact, there are no CATs in my life either. I have no use for one or the other.

It's always risky to generalize!


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Max Zalewski  Identity Verified
United States
Local time: 20:33
Member (2009)
Spanish to English
+ ...
TOPIC STARTER
more details Apr 17, 2013

Thank you for responding to my question.

Here are more details that may help is determining what, if any, consequences are appropriate:

The translator agreed to translate 20k words in 10 days with a TM. Along the way, the translator said the project was going well and did not need help. On the delivery date, the translator said they were not done yet. When asked if they wanted another translator to help finish, they said no. I did not receive the final translation until 3 days later and the translator did not use a TM. The job was not through proz. There was no agreement about what the consequences would be if the original terms weren't met (which is why I am posting here). Obviously, the translator did not meet expectations despite opportunities to get help from another translator. I would greatly appreciate any sort of idea about guidelines for consequences since I have never come across this situation in my own translations.

Thank you


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dahliaib
Local time: 04:33
French to Arabic
+ ...
did you discuss such probability wether in the contract, e.mail or letter? Apr 17, 2013

I am sorry for you. Well, usually contractors do mention in the agreement consequences in case of late delivery, in your case i must know if you did discuss such probability, whether in the contract or in e.mails, letters between both of you? those documents are proofs of late delivery of translation in due time, which can be mentioned in letters between you and the translator..

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564354352  Identity Verified
Denmark
Local time: 03:33
Danish to English
+ ...
Unfortunate, but not a complete breach of agreement Apr 17, 2013

At least the translator delivered the translation. I presume you had confidence in the translator's skills in advance so that you are not now in doubt about the quality of his/her work?

You can look at it from different perspectives: were you able to deliver the translation to the end client on time, or did the delay put you in the unfortunate position of having breached your own delivery date? Did this have repercussions? Did you lose money over this, or 'just' credibility? If you actually lost money over this, e.g. by having to give your end client a discount because of the delay, then that should be reflected in your 'penalty' towards your translator. If it did not, I would say, put it down to experience, be happy that at least you got the job done and be careful about using this translator again on a large job.

As for the TM: Have you subsequently asked the translator to supply a TM? If he/she is actually able to supply a TM, they should still be able to generate one by performing an alignment of the source and target texts. Again, if they do not do this as you had agreed, that would constitute a minor breach of your agreement, but as it is not really a huge deal to carry out an alignment of a text of that size, maybe you can just do it yourself and again put it down to experience. I wouldn't consider that something that would incur any great 'penalty' considering the size of the job.


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Nicole Schnell  Identity Verified
United States
Local time: 18:33
English to German
+ ...
I noticed that you are referring to the translator as "they" Apr 17, 2013

Max Zalewski wrote:

... they were not done yet...

..., they said no...


Did you hire a translator/editor team or were there actually several people working on the translation while the editing was done at your office? The deadline was awfully tight. Such things spell trouble.

Łukasz made a good point. You can deduct any financial damages that incurred on your side, such as paying an unexpected rush fee to your editor and/or surcharges for weekend work but I would be careful with "penalties".


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Samuel Murray  Identity Verified
Netherlands
Local time: 03:33
Member (2006)
English to Afrikaans
+ ...
I'm afraid you have to negotiate Apr 17, 2013

Max Zalewski wrote:
There was no agreement about what the consequences would be if the original terms weren't met (which is why I am posting here).


You should try to reduce the amount on his invoice, but if he doesn't accept that, then your options are to either pay him in full or not use his translation at all. Why? Because you can't use the translation until you have paid for it that which the translator and you had agreed upon. So you have to either explain the situation to him and hope that he is reasonable, or you can try to make it seem like you're deducting a portion of the fee without him having any say in the matter.

There isn't much you can do about the missed deadline (sorry, there really isn't much you can do). You can try to penalise the translator with a reduction of the amount that you're willing to pay him, but if he doesn't accept that, then you have to pay up the full amount later anyway. If you've suffered financial loss because of the missed deadline, and you can prove it to a judge or jury, then you can try that, but it is often not worth the hassle and expense.

The fact is that the deliverables were (a) a translation and (b) a TM. He only delivered a translation. This means that you have to hire someone to create the TM separately. The translator's fee should be reduced at least by how much that would cost.


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ExScientiaVera  Identity Verified
Faroe Islands
Local time: 02:33
Danish to English
+ ...
A fair reduction Apr 17, 2013

I will usually itemize my bills, so you can see exactly what you are paying for.
One of my items is the word per day rate. If it is over 1750 words per day, I charge 2 cents extra, if it is over 1250, I charge one cent extra. If it is under 1250 a day, I do not charge anything extra for that amount of work. This itemization is how I can self regulate my work flow. Some weeks, I need to work hard, but I also want to relax for a while after that.
In your case, the guy translated the document in just over 1500 words a day, when you two agreed to 2000 words per day. I would suggest you ding him for one cent per word, or 200 USD.


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Jessica Noyes  Identity Verified
United States
Local time: 21:33
Spanish to English
+ ...
Ask the translator Apr 18, 2013

I suggest you ask the translator what kind of discount he/she/they plan/s to offer for the late delivery. Mention the inconvenience to you, the extra time to create the TM, etc. This takes you out of the role of meter-out of punishment, and allows the translator to save face. Offering a discount is very different from being "fined," "docked," or "penalized." We are wordsmiths after all, so we know that the terms that are chosen in any circumstance are very important. So first give the person a chance to voluntarily make good on the situation.

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The Misha
Local time: 21:33
Russian to English
+ ...
You control the purse strings here Apr 18, 2013

It is immaterial whether the person knew what a TM is: if they agreed to deliver one and didn't, they are clearly in breech. It is also immaterial whether the deadline was tight (even though in my book it doesn't look all that bad. I could deliver 20K in 10 days without breaking a sweat or giving up my afternoon naps): once your contractor agreed to it, he is bound. Furthermore, they have apparently misled you as to the status of the project and by refusing help when offered so that the project could be finished on time. I understand that force majeure does happen even though it usually tends to happen to some folks more than others, but in your case this is clearly not it. This seems to be the issue of your subcontractor's inadequate work ethics rather than anything else.

It is also immaterial whether you've suffered any actual damages as a result. This has nothing to do with the other party's failure to perform as agreed upon.

You control the purse strings here, which puts you in a unique position of being able to determine the penalties in this case as you see fit. I wouldn't go as far as suggesting that you don't pay at all unless, of course, on top of it all the translation is garbage and unusable. Take a nice discount - 20% sounds reasonable - from what you owe this person and make sure you let him know why you are doing this. Is 30% a better number? Well, that's up to you, depending on how much value you placed on that TM and where else you may feel shortchanged. What is even more important, do not ever hire this person again and make sure you spread the word too. Some pairs, directions and areas of specialization are fairly tight communities. You want to let others know who the black sheep are.


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