Some time ago I wrote a text about the features of technical documentation that make translation easier. As I was writing that post, I realized that I could write a similar article about agreements, terms and conditions, and similar legal texts.
Legal texts are in a way similar to technical documentation. If their writing is sloppy, they become unclear, which, in turn, may have disastrous effects. In the case of technical documentation, this may lead to damage to equipment, operator’s injury, or even death. In the case of agreements, this may lead to all sorts of misunderstandings with small or great consequences: late delivery, serious financial penalties, or even jail.
The agreements, terms and conditions, and other legal texts I translate are usually related to technical matters to some extent. These are sales agreements for industrial machinery with technical specifications, service agreements, or terms and conditions for works. Just like in the case of technical documentation, it happens that these documents are not written by qualified persons. They are not created by diligent lawyers but they are based on templates readily available on the internet or on drafts of previous agreements that a company has concluded. Also, such documents may have been hastily drafted or written by persons who do not pay attention to detail whatsoever. As a result, the final document is unclear and difficult to translate.
However, there are some features of well-written agreements that help us to understand them better and to translate them more efficiently. Some of these good practices resemble the ones mentioned in my text on technical documentation; however, they apply slightly differently to legal texts.
I would like to paraphrase a sentence from my post on technical documentation: consistent terminology is the key to clear legal communication. The names of the parties, works, services, objects, goods, events, documents, or any other important elements that can be found in an agreement should be clearly defined (more on this below) and the terms that refer to those definitions should be consistently used throughout the whole document.
Unfortunately, it happens that the authors of the document use synonymous terms. For instance, we can find the term “Buyer” in the definitions, but later on the terms “Purchaser” and “Customer” are also used in the document. If the agreement is relatively simple, such synonymous expressions are only a stylistic mistake. However, if the relations between the entities are complex, for instance when the buyer is a number of affiliate companies, the reader may begin to wonder to whom the term really refers to.
When it comes to translation, such inconsistent use of terms makes it difficult to understand who or what exactly is referred to in a given context and it also negatively affects the efficient use of CAT software and glossaries created in the CAT. For instance, if different terms are used in an agreement, the translation memory has worse fuzzy matches or it eliminates 100% repetitions:
The Ordering Party shall duly pay the invoices issued by the Supplier.
The Contracting Party shall duly pay the invoices issued by the Contractor.
Here, a simple substitution of the terms makes the sentences only fuzzy matches instead of 100% repetitions, even though they mean the same. The translator’s work is in a way superfluous here: the translator checks if the two sentences share the same meaning. If there are more such cases in the agreement, this prolongs the time and negatively affects the CAT quality assurance tools.
AVOIDING SUPERFLUOUS TERMINOLOGY
The above-mentioned issue is often related to another problem, which is the use of several terms for one object. Sometimes, they are defined in the beginning, for instance:
“Subject matter of the agreement”, “Plant”, “Installation” mean the complete assembly of the steam boiler with the technical features specified below.
Sometimes, the synonymous terms are added later on in the text, as if the authors realised that, in accordance with practices of “good style” taught at school, repetitions should be avoided. However, in the case of agreements, the simpler the terminology, the better for the reader and, of course, for the translator as well. If one and only one term is used to refer to one object, this makes understanding easier and assures the reader that they deal with one specific object and there is no need to think whether something else is meant. Moreover, some terms in English or in Polish do not have enough synonyms, so this is not always doable in translation.
Similarly, as in the case of inconsistent terminology, superfluous terms make it difficult to use all CAT tools efficiently and assure quality.
CONSISTENT SPELLING WITH CAPITAL LETTERS
This particular problem concerns more Polish than English, but it happens in English too.
There is a custom that is commonly used in agreements to write defined terms with a capital letter, e.g. “Agreement”, “Ordering Party”, “Service”, etc. In English, if the term has two or more components (e.g. “Maintenance Services”), all parts are capitalised, but there is no clear rule how to treat such expressions in Polish. The Polish translation of „Maintenance Services” can be styled either as “Usługi Konserwacyjne”, “Usługi konserwacyjne”, or “usługi konserwacyjne”. However, the most common practice seems to be to capitalise the first term only.
Generally speaking, some Polish translators use their common sense or what looks better to them. As I have noticed, English is more liberal in this respect, so sentences like the one below are perfectly normal:
If Unauthorised Persons gain Access to Confidential Information as part of Services, the Contractor shall immediately notify the Contact Person appointed by the Ordering Party about this fact
In my view, when we translate into Polish, it is better to capitalise the terms. Again, this makes understanding the text easier, because we immediately know whether the defined “Service” is meant or some other. This also applies to terms with multiple components. I translated agreements, where lack of capitalisation of the second term could lead to ambiguity. That is why I follow the opinion of the PWN language counsel:
We can see a rather specific function of the capital letter – the text becomes unambiguous and given meanings are emphasised. [translation mine]
This particular topic can be extensively discussed and analysed in academic journals, but it required general description to present the problem of inconsistent application of this convention.
Unfortunately, even if the terms are clearly defined and the use of terminology are announced with great pomp and circumstance as follows: “all the terms written with capital letters shall be hereby used in accordance with their meaning as stated in Definitions”, it is very common that they are not spelled like this.
Some time ago, I translated an agreement, which contained over 50 defined terms, one of them being “Measurement”. Some of these terms were used in accordance with the definitions but sometimes they appeared in their general, common meaning, so to differentiate between the uses, lowercase was used for the first letter. Unfortunately, the authors failed to follow this rule consistently and sometimes they wrote “measurement” when the context clearly indicated “Measurement” with capital “M”. Additionally, this was made even more difficult, because some sentences and contexts were unclear about whether the specific, defined “Measurement” was meant or some other kind of “measurement”. Because the authors were inconsistent in the text, my trust in their intentions was limited, so many fragments required consultation, marking, or deep analysis.
This issue becomes even more problematic when lack of consistency in capitalisation is paired with superfluous terminology. If “Installations” and “installations”, “Plants” and “plants” can be found in an agreement, and they refer to the “Subject Matter of the Agreement” and some other objects, it is very easy to make a mistake and cause confusion which the translator must cope with and consult with the client (if possible). Translators are very sensitive to ambiguity and various interpretations of a context, which makes it difficult to guess what the authors had in mind, even if they might think otherwise.
Again, all the issues with inconsistent capitalisation make the work longer than necessary, make the efficient use of CAT harder, and may also lower the quality of the translation.
USE OF LISTS
Although the structure of agreements seems to be clear and ordered with the division into chapters, articles, sections, clauses, paragraphs, sometimes the authors forget that bullet-point lists can be also used.
I often see “sentences” that can be well over one thousand character-long (i.e. over half a standard page!) only because the authors included a number of examples of a given case. Most often this is the case for force majeure instances, events covered by insurance, or scope of works. Such sentences are difficult to read and understand and in the case of translation they require double the usual attention so as not to miss any example.
It would be more readable and easier to process and translate if bullet-points were used in such cases. Especially when we use CAT software, some of the listed cases may have been already written in the translation memory and automatically placed in the target segment. Such lists save translator’s time and also positively influence the quality.
Fortunately, the issues with linguistic consistency occur rarely, but this topic is worth noting nonetheless. Linguistic mistakes such as lack of concord between the noun and the verb (and problems with grammatical cases in languages like Polish) are infrequent and even less frequently affect interpretation – but still, they do happen. I assume that such mistakes are a result of combining various templates, numerous edits, adding or removing provisions of the agreement. Unfortunately, it can be clearly seen that such final version is neither read nor checked, as if the authors thought “someone somewhere has written and checked that some time ago, so if we simply combine a few drafts and templates, it will work just fine”. Well, no, it won’t.
Such negligence often results in ambiguity and unclear fragments, especially when they are combined with the above-mentioned issues or if they concern numbers. Amounts of money are often written both with digits (10,000) and in words (ten thousand). However, it happens that they show different values, e.g. “5,000 (in words: fifteen thousand)”. Again, the authors’ negligence adds more work-load and require, otherwise unnecessary, discussions between the translator and the client.
COHESION AND COHERENCE
When I studied English linguistics, I learned about cohesion and coherence. Roughly speaking, cohesion refers to consistency at the level of particular sentences, how they relate to each other, and how they are “glued” together on grammatical and stylistic levels. Coherence refers to consistency at the level of the whole text and its underlying idea.
In the agreements which are a result of poor editing and combining various drafts and templates, negligent or extensive editing, the text is incohesive or incoherent. This results in a series of problems I’ve mentioned above: inconsistent or superfluous terminology, inconsistent spelling, repeated sections, lack of clauses which are referred to elsewhere in the document, grammatical mistakes… the longer the document is, the more issues can be encountered.
Lack of cohesion or coherence usually is a result of no final proofreading. Again, this adds more unnecessary work on both the translator and the client, because such issues require additional check and consultation.
WHAT DO I DO?
If I find any problems in agreements or terms and conditions, I apply several strategies. I correct many of the inconsistencies as I translate. I use consistent terminology, when it is clear from the context which term should be used. If there is superfluous terminology, I try to use only one term as often as possible. Sometimes, the target language solves this issue when there are not many synonymous expressions. Also, I correct the capitalisation of terms when the context allows. Obviously, I also pay attention to linguistic consistency – grammatical mistakes are unacceptable in the translated text. Finally, I try to make the text as cohesive and coherent as possible.
However, if there are any ambiguous or unclear fragments that are the result of poor grammar or writing, I try to solve them with the client immediately or I mark the parts of the text and add comments. I translate such fragments to the best of my knowledge and assumptions about the authors’ intent (knowledge of similar agreements here gives a great advantage), and then I mark them and explain what is wrong with particular sections. I also point out how a problematic fragment can be also interpreted and, as a result, translated.
I do not interfere with the structure, though. Even if I believe that some sections could be improved by further division, I cannot do this. Almost every agreement includes references between different sections, articles, clauses, etc. If I made any changes to the structure, it would effectively destroy such references, making the text difficult to follow. That is why I translate sections exactly as they are structured in the original.
As you can see, the topic of good features of agreements shares many similarities with good features of technical documentation, even though they are realised slightly differently. If there are problems with an agreement in this regard, the solutions to them may be different than in the case of technical texts. This is primarily the result of the specific nature of agreements, as they require different translation approach. That is why it is better to consult unclear sections.
Of course, it should be noted that not every agreement is full of such issues. Many of them are clearly and consistently written and their translation does not pose any greater problems, and, as a result, they are of high quality.
It has become a tradition to say that, but if you have any questions or comments, or if you need editing or translation of an agreement, terms and conditions, or similar legal texts, leave a comment below or write to us: firstname.lastname@example.org
PS: if you want to learn more about good features of technical documentation, don’t forget to read this post.