Translator's liability
Thread poster: Norskpro
Norskpro
Sweden
Local time: 08:12
Member
English to Norwegian
+ ...
Mar 26

A translation company wants to hire me as a freelance translator, before filling in some forms, I am asked to agree to the “terms and conditions”. Reading through the terms, I came to the part about liability:

I, as a supplier, am liable until XX has reviewed the translation I have supplied, and XX is responsible for the content review. My liability is “terminated, however, 14 days from the time the translation was delivered to XX”
So far so good. Then it continues, “, unless XX has complained in writing” to me about the quality or the invoice. It goes on to say that even after the 14 days, as a supplier I continue to be liable for “any errors or defects that XX can prove to be the result of” my “wilful actions” or “gross negligence”, defects that XX has not been able to detect within 14 days of receiving the translation. My liability ends after 10 years after I have delivered my translation to XX.

As I understand this, the first part, about my liability ending after 14 days, is irrelevant. If I am liable for ten years no matter what, my liability does not end after 14 days. XX does the review, and I am liable for 10 years. It seems XX has no liability.

I would welcome any thoughts on this.


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Mario Chavez  Identity Verified
Local time: 02:12
English to Spanish
+ ...
Punitive clauses Mar 26

This clause reminds me a bit of some punitive clauses I've found in freelance contracts. For example, that Translator will cover the legal costs in case a translation is found to cause harm to the agency's customer or similar wording.

Another punitive clause involves restrictions on translator trying to contact the agency's client directly to poach the client from the agency. No, wait, that sounds like a reasonable clause, right? Except that it is unenforceable. As with many professions, professional translators are expected to behave ethically, so this clause has been deemed unenforceable and the translator may not be held liable.

I am just sharing some examples of what I know in the USA system. You're right in feeling a bit skeptical about the clause you mentioned. I hope other experienced translators in your country come up and share a more focused advice.

I always tell my colleagues to check for unfair (punitive) clauses and negotiate with the client their rewriting or eliminating such clauses from the contract before signing.


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xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 10:12
Russian to English
Drop them Mar 26

It's a totally arbitrary time period as far as I can see. So they haven't given any serious thought to it. Which means they may be frustrating clients to do business with in general - that's my intution anyway.

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Norskpro
Sweden
Local time: 08:12
Member
English to Norwegian
+ ...
TOPIC STARTER
Thank you Mar 27

both, for your replies.
I will probably drop them, as you suggest, Ilan, unless they are open to changing the
paragraph in question. To me, it is absurd that a translator should carry liability for ten years, even though the
company is responsible for the review.


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Gabriele Demuth  Identity Verified
United Kingdom
Local time: 07:12
Member (2014)
English to German
How much liability? Mar 27

It does sound strange, I would not be surprised if there is an unlimited liability clause somewhere?

Does the contract state how much you are liable for?

I usually do not work with agencies who ask for 'unlimited liability'.


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Christine Andersen  Identity Verified
Denmark
Local time: 08:12
Member (2003)
Danish to English
+ ...
Check your own insurance policy or ask your insurer Mar 27

I have an insurance policy that covers quite a lot of damage from the kind of technically minor error that can prove disastrous... a misunderstood date, a decimal in the wrong place... It specifically does not cover any work I do for clients in the USA, however.

Open-ended 'hold harmless' clauses and other punitive formulations seem to be all too common, and even quite attractive-looking clients may suddenly present them. The chances are you will never need your insurance anyway, but when bad luck strikes, it can strike hard.

It is a good argument if you can reply that you have insurance to cover a reasonable level of liability, and state what that is. I don't know how many contracts and terms of sale I have translated, in which parties refuse to accept liability for indirect losses, loss of profits, goodwill etc. etc. although they are obliged to take out insurance against direct liability.

No one can realistically expect a freelance translator to have assets to cover millions of dollars of damage, so these open clauses are ridiculous anyway. As long as the client has to prove wilful actions or gross negligence, you can go along with it. If the big fish can limit their liability, then they must accept that translators can too.


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Norskpro
Sweden
Local time: 08:12
Member
English to Norwegian
+ ...
TOPIC STARTER
What is my client liable for? Mar 27

Thank you, Christine, for your advice. I will check.

Gabrielle, there is no mention of how much I am liable for.

Is my client not responsible for delivering a good translation
to their client? My client states that it is their responsibility to review the
translation. How can I then be liable for what they deliver to their client?


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Mervyn Henderson  Identity Verified
Spain
Local time: 08:12
Member
Spanish to English
+ ...
Of course ... Mar 27

[quote]Norskpro wrote:


Is my client not responsible for delivering a good translation
to their client?


... they are. They just want you to cover anything they might have to pay out themselves for shoddy work. Especially if they don't want to pay someone for checking your work before it goes out the other end.

In the past I've found stuff like that, mentioned it, and a reasonable customer will take it out. Or modify it yourself and suggest it to them. Otherwise forget about them.

[Edited at 2017-03-27 10:19 GMT]


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Nikki Scott-Despaigne  Identity Verified
Local time: 08:12
French to English
Seriously?! Mar 28

I’m playing devil’s advocate to try and see XX’s point of view alone.

We’ll only come back and hassle the freelancer for the first 14 days after delivery. Beyond that, we’re on our own. But not really (sneaky grin).

(About the quality). Great. If the client kicks up a fuss more than 14 days after I’ve delivered to my client, I can still turn around and hassle the freelancer. This is good news for me, ‘cos I don’t have to worry if the client complains even after two weeks from having received the work, I just pass on all the worries to the freelancer.
(About the invoice). Even better. In spite of there being no privity of contract with the end client, if the end client doesn’t like my freelancer's invoice, I still don't really have to deal with any complaints about it. This is really cool, even though I have absolutely no idea why my client should see my freelancer’s invoice!

Errors, defects, wilful actions and gross negligence. Aka, how to pass the buck for 10 years. A great retirement plan. A pass-the-buck clause! In the unlikely event of the client pursuing me in the 10 years following delivery, I just send the file onto the freelancer and point to this 10-year pass-the-buck clause and say it’s all his/her fault as he/she made the mistakes “wilfully” or through “gross negligence”. Wonderful. I can sleep easy even though the freelancer shakes in his boots for 10 years after each delivery. Also, this assumes that the freelancer has the astonishing desire to commit wilful errors and to sow their work with defects. It’s well known that translators take no pride in their work whatsoever!

Agency’s conclusion: I sleep easy and the freelancers are a nervous wreck. I’m onto a good thing here. If I were a potential freelancer, even I wouldn’t sign this, but that’s not my problem!

Freelancer’s best reaction: Haha!
Suggested reactions:
- Return the contract inversing "agent" and "freelancer"?!
- Bin it and get on with some work.


[Edited at 2017-03-28 06:59 GMT]


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Mirko Mainardi  Identity Verified
Italy
Local time: 08:12
Member
English to Italian
+ ...
Unacceptable terms: is that a trend? Mar 28

Nikki Scott-Despaigne wrote:

I’m playing devil’s advocate to try and see XX’s point of view alone.

...


LOL, nice to start the day with a laugh X) Thanks for that!

Seriously, though... what's wrong with these people? I was recently sent an agreement from an Italian agency (which I refused to sign) with a similar liability clause: first they said they had 60 days from delivery to raise complaints, BUT then a sub-clause added they could still raise complaints (and no term was specified at all) if their clients complained about the translation even after that term... That, plus a liability clause about copyright infringement toward third parties...

I'm no lawyer, but I suspect similar terms would be unenforceable in most jurisdictions, although you'd have to be brought to court to verify that...


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