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Mar 11, 2017 23:31
7 yrs ago
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French term
France
Medical and Legal translations
Native in: English 
, French
Works in: English to French, French to English, Russian to English, and 1 more.
obligations de moyens
French to English
Law/Patents
Law: Contract(s)
Licensing Agreement
In a Licensing Agreement, this sentence appears alone, as a separate paragraph:
"Les obligations de XXX constituent des obligations de moyens."
Next paragraph:
"XXX ne peut en aucun cas être tenue pour responsable envers le Licencié, pour quelque raison que ce soit, de tous préjudices indirects, quels qu'ils soient, et notamment de toute perte de données, préjudice commercial, perte de chiffre d'affaires ou de bénéfice, perte de clientèle, perte d'une chance, en relation ou provenant du Logiciel, de son fonctionnement, même si XXX a été averti de l'éventualité d'une telle perte ou d'un tel dommage."
I am considering several possible options here. I understand that XXX is bound by an obligation of means, i.e. that their obligation concerns the means, not the outcome (as opposed to an obligation of results). But do you think 'obligation of means' is sufficiently understandable in English as a stand-alone term, or would it seem a little unclear without stating the other alternative (obligation of outcome/results) in the same sentence? The KudoZ glossaries also have 'best efforts obligation' or 'relative obligation.' Should I use one of those instead?
Thank you.
"Les obligations de XXX constituent des obligations de moyens."
Next paragraph:
"XXX ne peut en aucun cas être tenue pour responsable envers le Licencié, pour quelque raison que ce soit, de tous préjudices indirects, quels qu'ils soient, et notamment de toute perte de données, préjudice commercial, perte de chiffre d'affaires ou de bénéfice, perte de clientèle, perte d'une chance, en relation ou provenant du Logiciel, de son fonctionnement, même si XXX a été averti de l'éventualité d'une telle perte ou d'un tel dommage."
I am considering several possible options here. I understand that XXX is bound by an obligation of means, i.e. that their obligation concerns the means, not the outcome (as opposed to an obligation of results). But do you think 'obligation of means' is sufficiently understandable in English as a stand-alone term, or would it seem a little unclear without stating the other alternative (obligation of outcome/results) in the same sentence? The KudoZ glossaries also have 'best efforts obligation' or 'relative obligation.' Should I use one of those instead?
Thank you.
Proposed translations
(English)
| 4 +1 | best-efforts obligations |
Charles Davis
|
Proposed translations
+1
1 hr
best-efforts obligations
I think your misgivings about "obligation of means" are sound. It is not an established EN legal term and I don't think it's self-explanatory. But "best efforts" or "best endeavours" (which are synonymous) are perfectly familiar terms in contract law, both in the UK and in the US and Canada, and I think they're equivalent to "obligation de moyens". That view is widely held.
"While drafting and negotiating such clauses, particular attention should be paid to the difference between the so-called "obligations to achieve a specific result" (such as, an obligation to meet a specified budget or deadline) and "obligations of best efforts" (such as, an obligation to use its best efforts to meet the budget or the specified deadline)."
http://www.french-business-law.com/agreement-for-provision-o...
"obligations de moyens
Lorsque le débiteur a promis seulement une diligence ( qui peut être diversement qualifiée : faire son possible, faire tout son possible, faire autant que possible, "best efforts" "best endeavour", "reasonable endeavour") il y a obligation de moyens"
http://www.lexinter.net/JF/obligations_contractuelles.htm
My one doubt is about whether it should be "best efforts" or "reasonable efforts". These are not synonymous, at least in the UK:
"The words ‘reasonable’ and ‘best’ have, in this context, a very specific meaning (the words ‘efforts’ and ‘endeavours’ are interchangeable). So what efforts are reasonable? What are best efforts? A ‘reasonable efforts’ obligation requires the supplier to take a reasonable course of action that is available to it to comply with its contractual obligations. However, ‘best efforts’ requires much more. Anyone that is required to fulfill their obligations using their ‘best’ efforts will be expected to take all practical and necessary steps and courses of action to get the job done."
https://www.city.ac.uk/__data/assets/pdf_file/0013/134005/Te...
At any rate, "best" is most commonly regarded as the equivalent:
"- la description d’une obligation influence la manière dont elle sera qualifiée. Les obligations de fournir les moyens appropriés afin de… ou de faire les efforts nécessaire pour… seront généralement qualifiées d’obligations de moyens ;
- les notions de best efforts et de reasonable efforts ne sont pas, a priori, interprétées différemment l’une de l’autre en droit belge et indiqueront en général une obligation de moyens"
http://www.francoiscoppens.be/bettercontracts-2-obligation-d...
Whether the same is true in France I couldn't say, but it seems likely.
"While drafting and negotiating such clauses, particular attention should be paid to the difference between the so-called "obligations to achieve a specific result" (such as, an obligation to meet a specified budget or deadline) and "obligations of best efforts" (such as, an obligation to use its best efforts to meet the budget or the specified deadline)."
http://www.french-business-law.com/agreement-for-provision-o...
"obligations de moyens
Lorsque le débiteur a promis seulement une diligence ( qui peut être diversement qualifiée : faire son possible, faire tout son possible, faire autant que possible, "best efforts" "best endeavour", "reasonable endeavour") il y a obligation de moyens"
http://www.lexinter.net/JF/obligations_contractuelles.htm
My one doubt is about whether it should be "best efforts" or "reasonable efforts". These are not synonymous, at least in the UK:
"The words ‘reasonable’ and ‘best’ have, in this context, a very specific meaning (the words ‘efforts’ and ‘endeavours’ are interchangeable). So what efforts are reasonable? What are best efforts? A ‘reasonable efforts’ obligation requires the supplier to take a reasonable course of action that is available to it to comply with its contractual obligations. However, ‘best efforts’ requires much more. Anyone that is required to fulfill their obligations using their ‘best’ efforts will be expected to take all practical and necessary steps and courses of action to get the job done."
https://www.city.ac.uk/__data/assets/pdf_file/0013/134005/Te...
At any rate, "best" is most commonly regarded as the equivalent:
"- la description d’une obligation influence la manière dont elle sera qualifiée. Les obligations de fournir les moyens appropriés afin de… ou de faire les efforts nécessaire pour… seront généralement qualifiées d’obligations de moyens ;
- les notions de best efforts et de reasonable efforts ne sont pas, a priori, interprétées différemment l’une de l’autre en droit belge et indiqueront en général une obligation de moyens"
http://www.francoiscoppens.be/bettercontracts-2-obligation-d...
Whether the same is true in France I couldn't say, but it seems likely.
Note from asker:
| Thank you very much Charles, this was a real eye-opener, and your ensuing discussion with Nikki was extremely useful to me as well. |
Discussion
http://www.translatorscafe.com/tcterms/fr-FR/thQuestion.aspx...
https://www.kluwerlawonline.com/abstract.php?area=Journals&i...
I enjoyed the discussion very much too - always nice and reassuring to see that we're not alone and how much care goes into our work.
Nice doing business with you!
To take your last point first, I would be inclined to make it plural, because I take it that the ST is referring to a plurality of "obligations" in the contract (each of which imposes a duty to exercise best efforts to fulfil that particular obligation).
I entirely agree with the general point that FR obligation should often be translated as EN duty. On the other hand, as you say, contractual obligations are formalised, and I think that applies here.
However, leaving aside the question of whether it would be better to use duty or obligation here, I do agree that your suggestion reads better than mine. "Best-efforts obligations" is not exactly euphonious, which is not an overriding consideration but not a trivial one either, other things being equal. I would prefer "obligations to exercise best efforts/endeavours".
Oh yes, one final thing. The French "obligation de moyens" seems stronger than the usual EN translation for this. I think whan push comes to shove on this one, the best effort obligation (;-) is actually some distance from a literal "obligation of means". In other words, the EN version means you have to try your best and the FR version suggests an obligation to succeed in providing those means! Food for thought. Also, it is worth noting that although usually expressed, these obligations are generally implied in any event... which is perhaps when they become duties? Ok, ok, I'm done!
In this particular instance, "duty to exercise best efforts" works, "obligation" is probably closer to the French, so your suggestion works best for the term. However, even though it is a title, I think "obligation to exercise best efforts" reads much more naturally than "best-efforts obligations". Would it not be better in the singular; to me, the efforts are plural, the obligation is singular in seeking to match that requirement.
Yes, "obligation" is a common enough term in contract law. A contract demsontrates willingness to enter into a formal relationship and creates privity of contract. Where there is privity of contract, there is almost always a duty of care, often to exercise reasonable care and skill in carrying out the obligations under the terms of the contract. Obligations are usually formalized and known about, duties may be formalised and are sometimes known about, but it is common for people to be unaware that duties are owed. Tort (negligence) is all about duty of care, reasonable forseeability and remoteness of damage.
As for duties vs obligations, Nikki, I think your formulation is fine and would be happy to vote for it. As a matter of drafting I think it would usually be used when followed by the nature of the duty: "exercise best efforts to...". But "obligation" is a perfectly normal term in contract law generally and there is no general predominance of "duty" over "obligation" in E&W or elsewhere, to my knowledge. In a general sense a duty is something owed to everyone and an obligation is owed to a specific person.
I don't much care for the term "obligation" in English here, in spite of the fact that during my studies in law, we did look at "obligations" under contract law and tort. The main notion was all abut "duty". If your target reader is in England or Wales, the term will have meaning. It seems to work for the US too. Steer away from "reasonable" here, a lower standard than "best".
http://www.gannons.co.uk/contract/agreement/best-endeavours-...
http://www.jonesday.com/best-efforts-and-endeavourscase-anal...
http://reforme-obligations.dalloz.fr/2016/08/08/les-obligati...
P.S. I cannot post an answer so have posted here.