Question: How to determine whether a notice is required in this Duration article?
Thread poster: Baker Zhang

Baker Zhang
China
Local time: 16:19
English to Chinese
+ ...
Apr 13, 2012

I came across a Duration clause as follows in a book about legal contracts:

"Duration

The delivery period shall commence on _____ and shall continue until terminated on ____, or on any anniversary thereof, by either party upon at least thirty (30) days prior written notice to the other party."

As I understand, there may be two termination timing options. One is the date following "until terminated on ___;" the other is "any anniversary thereof."

My question is related to the notice part. I think a notice is required in either case. However, according to a Chinese reference translation of this clause, the notice part "by either party upon at least thirty (30) days prior written notice to the other party" is translated to limit only the termination of "any anniversary thereof."

Is it possible to determine whether a notice is required if the delivery period is terminated in the first timing option, that is, "until terminated on ____?"


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Marco Ramón  Identity Verified
Mexico
Local time: 02:19
Member (2007)
English to Spanish
+ ...

Moderator of this forum
Ambiguity Apr 13, 2012

This is a question for a Judge, who would have to determine the intention of the parties. In my opinion the original text was not carefully written. Is ambiguous. I think the translation should be ambiguous too. Our job is to translate! What would happen if we introduce an extraneous condition?

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Phil Hand  Identity Verified
China
Local time: 16:19
Chinese to English
IMO your understanding is correct Apr 13, 2012

Two reasons:

(1) The part of the sentence following "or" doesn't work as a standalone section;

(2) If the notice part were only meant to apply to the anniversaries, then is any notice required for termination on the specified date? How does one select between the specified date and the anniversary+notice? The whole article becomes ambiguous and pointless on this reading.

Your reading seems to me to be obviously what the drafters meant. Textbooks and reference translations are often flawed!


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RobinB  Identity Verified
Germany
Local time: 09:19
German to English
No ambiguity whatsoever Apr 13, 2012

The commas bracketing the "or on any anniversary thereof" are really there to aid readability (and they've evidently failed in that objective), not to introduce a separate provision to which the notice period relates.

Read the sentence without these strictly unnecessary commas and it becomes abundantly clear that the notice period applies to the delivery period, regardless of how long that delivery period actually is.

So the Chinese reference translation is simply wrong. Oops....


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Claus Sprick  Identity Verified
Germany
Local time: 09:19
Member
French to German
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with Phil and Robin: Notice required in any case Apr 13, 2012

Additional argument: If it were otherwise (which should be considered as an unusual clause), I would have expected the words "by either party" to follow immediately after "until terminated", without a comma after "anniversary thereof".

@Marco: I'm a retired judge of the German Federal Supreme Court
Of course, you would need at least the entire Agreement to determine the intentions of the parties.


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Neil Coffey  Identity Verified
United Kingdom
Local time: 08:19
French to English
+ ...
I don't get the ambiguity either Apr 13, 2012

Marco Ramón wrote:
This is a question for a Judge, who would have to determine the intention of the parties. In my opinion the original text was not carefully written. Is ambiguous. I think the


As far as I can see there's little ambiguity and the Chinese translation is simply wrong. If you take out the phrase between commas "or on any anniversary thereof", you have a sentence implying that notice is simply required.

On the other hand, without the comma after "thereof", a different interpretation would be implied.

That said, if there was actually a claim from one of the parties that they had (wrongly) interpreted the contract in a different way prior to signing, then I suppose that could be a question for a judge (though they might say it was tough).

[Edited at 2012-04-13 14:30 GMT]


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John Fossey  Identity Verified
Canada
Local time: 03:19
Member (2008)
French to English
Seems very clear Apr 13, 2012

I believe that if the "notice" section was intended to apply to the latter timing section only, the second comma would have to be eliminated.

Because of the second comma, the phrase starting "by either party" applies to "until terminated" not the two phrases that start "on ...".


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Gennady Lapardin  Identity Verified
Russian Federation
Local time: 11:19
Italian to Russian
+ ...
The case is more complicated than it appears Apr 14, 2012

Baker Zhang wrote:

prior written notice to the other party."



To the address of the other party? If yes, to which address (legal, main business, a representative, etc.)? Or it should be merely written, specifying in the heading: Att. of X, and mailed (p.p. from 'to mail') to (whom?) or not mailed (just communicated by phone, fax, telex or otherwise)? Sure, that the secretary who will be in charge of such notice, will do her best to use all of these possibilities in their combination. That's sure.
Therefore, I would pass this clause through a translating machine and.. forget. hth

[Edited at 2012-04-14 10:30 GMT]


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Baker Zhang
China
Local time: 16:19
English to Chinese
+ ...
TOPIC STARTER
Thank you for your opinions Apr 19, 2012

Now, I believe the conclusion is clear: the notice part applies to either termination date and the Chinese reference translation is incorrect.

Different approaches are applied in the reasoning. There are arguments based on the language used, including the position of the comma. Others focus on the rights and obligations of the parties and the intent of an agreement. Both approaches come to the same conclusion.

Thank you for your time and opinions!


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Question: How to determine whether a notice is required in this Duration article?

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