合同翻译—原则,特征和策略 THE TRANSLATION OF CONTRACTS PRINCIPLES, FEATURES AND STRATEGIES

合同翻译—原则,特征和策略

THE TRANSLATION OF CONTRACTS PRINCIPLES, FEATURES AND STRATEGIES

Abstract

With China’s entry into WTO and playing a more and more important role in international transaction, business communications across the borders are substantially increasing which stimulates the demand of contract translation as a certain result. Translation of contracts has thus drawn the interests of translators and scholars. It is under these circumstances that the author of this thesis embarks on the exploration of the theoretical basis and practical measures of contract translation.

To develop translation competence, contract translators need instruction in translation theory as well as practice. In Chapter One, after briefly reviewing the origins and development of legal translation, the thesis cites the overlapped theoretical aspects of translation principles. Like general translation principles, the principles for contract translation may be regarded as a principle in action if it helps translators become responsible decision-makers in terms of “Faithfulness, Expressiveness and Elegance^^ or “信、达、雅“ in Chinese. Chapter Two of this thesis addresses the lexical and grammatical features of contract translation, which is to fulfill the main task by means of the analysis of words, terms and paragraphs in contract translation as an act of communication, thus making it necessary to redefine the characteristics of contract translation.

As to practical aspects of the subject matter, Chapter Three makes analysis on the errors made in the process of contract translation, including Grammatical Errors, Mechanical Translation Errors and Laymen Errors. Then Chapter Four puts forward the options as strategies for the translation of contracts by the means of Paraphrasing, Finding the Functional Equivalence, Literal Translation, Accurate Selection of Modality and Vague Words for Vague Words.

Through contrastive study of translation examples, the objective of this thesis is to highlight the importance that the translation of contracts -as the communicating tool of a very specialized community- has in the wording of the text itself, as well as the differences that can be drawn between various types of legal systems with an international projection in large-scale business transactions today.

中文摘要

随着中国加入世贸组织并在国际贸易中的地位日益加重,跨国商务交往显著频密,必 然促进了对合同翻译的需求增长。合同翻译,因而吸引了翻译界及学术界人士的关注。 有鉴于此,本文作者着手试析合同翻译的理论基础及实践策略。

为提高合同翻译能力,翻译者获得的指导应在理论与实践两方面双管齐下。在简要回 顾了法律翻译的起源及发展后,本文列举了存有竞合的翻译原则。类似于一般的翻译 原则,合同翻译的原则也可以被视为行为原则,只要它有助于翻译者以“信、达、雅” 为原则成为一个负责的决策者。在第二章中,本文试通过对合同翻译作为一种交流行 为的遣词、用句及段落的分析,说明合同翻译的词汇及语法特征以实现本文的主要目 的,进而再现合同翻译的特性。

至于前述的实践部分,本文在第三章列举了合同翻译过程中常见的错误,包括语法错 误,机械翻译错误及外行错误。继而在第四章提出建议以释意、功能对等、直译、准 确使用情态动词及含混对含混作为合同翻译的策略。

通过充分的实例分析,本文旨在提示合同翻译的原则,特征及其策略以明确合同翻 译一一作为一个非常特殊的交流工具一一存有自身的语言特色及其不同法系引致的 差异,在国际大规模商务交流的今天蓬勃发展。

Contents

Acknowledgements 2

Abstract  3

中文摘要 4

Contents 5

Introduction 7

The Principles for the Translation of Contracts 9

  • Development of Legal Translation
  • A Brief Review of Overlapped Translation theories
    • Tytler’s Three Principles of Translation
    • YanfiTs Principles for Translation
  • Application to the Translation of Contracts
    • Principle of Xin (Faithfulness)
    • Principle of Da (Expressiveness)
    • Principle of Ya (Elegance)

The Features of the Translation of Contracts 15

  • Lexical Features
    • Technical Terms
    • Terms with Different Meanings
    • Archaic
    • Latin Words and Phrases
    • French Words
    • Doublets
    • Formal Register
  • Grammatical Features
    • Nominal Character of Legal Writing
    • Complex Prepositional Phrases
    • Prevalence of Passive Forms
    • Importance of Modality

Analysis on Errors in Contract Translation 25

  • Grammatical Errors
    • Single and Plural Forms
    • Articles
    • Conjunctions
  • Mechanical Translation Errors
    • Mechanical Translation Errors in Translating Contract from English to Chinese
    • Mechanical Translation Errors in Translating Contract from Chinese to English
  • Laymen Errors
    • Errors Made by Laymen of English Legal System
    • Errors Made by Laymen of Chinese Legal System

The Strategies for the Translation of Contracts 32

  • Paraphrasing
  • Finding the Functional Equivalence
  • Literal Translation
  • Accurate Selection of Modality
  • Vague Words for Vague Words

Conclusion 39

Bibliography

The Translation of Contracts

Principles, Features and Strategies

Introduction

A contract is a legally binding agreement, that is an agreement imposing rights and obligations on the parties which will be enforced by the courts. In the United States, contracts, like statutes, are characteristically detailed and prolix. The attention to detail may be due to a number of causes, including the standardization of routine transactions, the frequent involvement of lawyers in all stages of exceptional transactions, the desire to avoid uncertainty when the law of more than one state may be involved. All of these add to the general disposition of the case-oriented principle and decide the lexical and grammatical features of contract.

With China’s entry into the WTO and playing a more and more important role in international transactions, business communications across the borders are substantially increasing which stimulates the demand of contract translation as a certain result. Translation of contracts has thus drawn the interests of translators and scholars. It is under these circumstances that the author of this thesis embarks on the exploration of the theoretical basis and practical measures of contract translation. To develop translation competence, contract translators need instruction in translation theory as well as practice. After briefly reviewing the origins and development of legal translation, the thesis cites the overlapped theoretical aspects of translation principles. Like general translation principles, the principles for contract translation may be regarded as a principle in action if it helps translators become responsible decision-makers in terms of “‘Faithfulness, Expressiveness and Elegance^^ or “信、达、雅“ in Chinese. Chapter Two of this thesis addresses the lexical and grammatical features of contract translation, which is to fulfill the main task by means of the analysis of words, terms and paragraphs in contract translation as an act of communication, thus making it necessary to redefine the characteristics of contract

As to practical aspects of the subject matter, Chapter three makes analysis on the errors made in the process of contract translation, including Grammatical Errors, Mechanical Translation Errors and Laymen Errors. Then Chapter four puts forward the options as strategies for the translation of contracts by the means of Paraphrasing, Finding the Functional Equivalence and Literal Translation.

 

The Principles for the Translation of Contracts

  • Development of Legal Translation

The oldest known recorded evidence of contract and legal translation is the Egyptian-Hittite Peace Treaty of 1271 B.C. (Hilf 1973:5), as treaty is considered to be a special kind of contract that is made by and between countries other than individuals or entities. For over 2000 years, general translation studies were dominated by the debate whether translation should be literal or free (Steiner 1977:239). Due to the sensitive nature of legal texts, this issue has been particularly controversial in legal translation as it raises legal questions as well. In fact, the first real challenge to the literal translation of legal texts did not come until the twentieth century when translators of lesser used official languages finally began to demand equal language rights, thus setting the stage for the development from literal to near idiomatic and idiomatic. Sarcevic (1997:24) illustrated this development by the following figure:

Sti

Litt

ict Lite

^ral

2ral Mode

Lite

rately Nt

sral Idior

地 r Idior

natic

natic Co-drafting

 

Needless to say, the development of legal translation somehow influenced and represented that of contract translation and is worth glancing at before the discussion of contract translation.

  • A Brief Review of Overlapped Translation Theories
    • Tytler,s Three Principles of Translation

If we cast our eyesight into the western translation circles, it is found that the famous English translator, Alexander Fraser Tytler, had three principles of translation in his Essays on the Principles of Translation published in 1790. These three principles of translation are

as follows:

  • The translation should give a complete transcript of the ideas of the original work;
  • The style and manner of writing should be of the same character as that of the original; and
  • The translation should have the same ease as the original composition.
    • Yanfu’s Principles for Translation

In China, the wel 1 -acknowledged principles for Translation should be contributed by Yan Fu, which is the formulation of his classic tripartite standard for excellence in translation, namely Xin, Da and Ya, or Faithfulness, Expressiveness, and Elegance in English. Yan Fu devoted himself to translating western literature pertaining to the humanities and social sciences. He put forward these principles in the preface of his translation — “Ethics and Evolution^^ (《天演论》).He gave expression to his theory that “translation involves three requirements difficult to fulfill: Faithfulness, Expressiveness, and Elegance.^^ (“译事三难: 信、达、雅。”)

Though some recent speculation claims that Yan might have drawn on the principles put forward by Tytler because of their similarity, the origin of Yan’s statements is rather believed to be derived from concepts Confucian doctrines contained, including the Yi Jing or The Book of Changes. The origin of Yan’s theory can also be traced back to the principles of translation maintained by the Buddhist translators of the East Han dynasty, thereby indicating that Yan’s criteria of translation are deeply rooted in traditional Chinese literary theory.

  • Application to the Translation of Contracts

Still today, almost a century after Yan’s death, there are people such as translators Shen Suru and Zhou Xuliang who claim that Yan Fu’s criteria are the best ever formulated for translation anywhere in the world, which is a fact that demonstrates the influence and tenacity of his theory.

Should Xin, Da and Ya be the three principles for every translator to accept, Faithfulness, Expressiveness, and Elegance are likely to be the three principles for contract translator to acquire in translating contracts between Chinese and English.

  • Principle of Xin (Faithfulness)

Xin, or Faithfulness in English, is considered as the first principle for a translator to follow, that is, the translated text should strictly depend on the source text. Contract translators have traditionally been bound by the principle of faithfulness. For the sake of preserving the letter of the contract, the main guideline for contract translation was faithfulness to the source text. Even after UN Instructions for Translators appear to take a more liberal approach by admitting that “there is always room for the exercise of stylistic judgment in the case of draft resolutions, treaties and other legal texts, or technical texts;” (1984:3)however, the final conclusion is that “faithfulness to the original text must be the first consideration”.

The following simple clause selected from a Partnership Agreement by Prof. Chen Zhongcheng (陈忠诚)(1999: 132) shows the difficulty in pursuing faithfulness:

合伙人对合伙的债务承担连带责任。

There should be few people considering “‘Partners shall undertake joint liability” as wrong translation, and this is the authorized translation of the laws of the People’s Republic of China. Even if you check the English version of《 民法通贝U》translated by Prof. Witmore Gray, you’ll find the similar translation, that is “All partners are jointly liable”. However, the fact is, both of them are wrong though they look right.

The accurate translation for “连带责任”can be concluded from definitions in following dictionaries:

Joint and several OF – joindre- to join; lat-separ-separate, distince. Together and separate; together and alone; collective and individual, in any combination, For example, when used in connection with the liability of two or more persons, means that each person is liable together and individually. The liability may be enforced against all or any or only one of the persons bound by joint and several liability.

  • Butterworths Concise Australian Legal Dictionary, 1997

Lien2-tai4 连带 1. Joint (and several), co-; jointly : fu4 〜 ch’ingl-ch’ang2 chai4-wu4 tse2-jen4 负〜清偿债务责任:to bear a joint liability for repayment of a debt.

  • Dictionary of Chinese Law and Government by Philip R. Bilancia (Stanford University Press, Stanford, California 1981 P424)

Joint and several = together and in separation. With joint and several liability, the liability of two or more obligors may be enforced against them all by a joint action or against any of them by an individual action. Solidary liability is used in this sense in Louisiana, Puerto Rico, and Civil law countries.

  • A Dictionary of Modem Legal Usage by Bryan A. Garner

Therefore, the accurate translation for “连带责任”should be “joint and several liability^^ or “solidary liability”. If take legal system into consideration, it should be translated into “joint and several liability” when the contract is used in America (except Louisiana), England or any other Common Law countries which originate from Anglo-American Law system; while it should be ‘”solidary liability“ in Germany, France or any other Civil Law countries which originate from Roman Law system. As most of the characteristics of our legal system are attributed to Civil Law system, “‘solidary liability” should be the even more accurate translation for “连带责任”and realize the highest faithfulness to the SL.

  • Principle of Da (Expressiveness)

Da, expressiveness in English, or lucidity in a more formal way, points out that the style and manner of writing should be of the same character as that of the original. Due to the formality of contracts, the style and manner is essential to express the same of the original other than the meaning itself.

Atypical example (侯维瑞,1988:301) to cite this principle is as follows:

Notwithstanding the termination of the hiring under Clause 6 the Hirer shall pay all rent accrued due in respect of the hiring up to the date of such termination and shall be or remain liable in respect of any damage caused to the Owner by reason of any breach by the Hirer of any stipulation herein contained and on the part of the Hirer to be performed or observed.

Chinese version:

如若赊购人按第六款终止赊购,赊购人仍须支付至终止赊购日止之全部累计欠 金,凡因违背赊购人理应履行之任何条款(详情备载于后)而引起之各种损坏并 对主权人造成损失者,赊购人仍须付有赔偿责任。

This typical clause in hiring contract shows that every task that a translator performs requires the use of languages, not only the original language but the target language. In most situations, the translators of contracts are legal professionals or have legal background. The best preparation for the translation of contract is to acquire the ability to write the language accurately and effectively.

  • Principle of Ya (Elegancy)

Ya, widely accepted as elegancy in English, has a qualification must be added. In the past years, ya has at times incurred harsh criticism. It is said that some scholars have misinterpreted ya to mean “elegance” and ask “what if the original is not elegantV^Others, who know that ya refers to a special style of classical Chinese called Erya, criticize Yan Fu for not using the vernacular language, which has become the norm since the May Forth Movement of 1919. The fact is that Yan Fu’s translation is before the May Fourth Movement, and his use of classical Chinese was determined by prevailing conditions at the time.

It is not necessary to discuss whether ya refers to Elegancy or Erya here. As a matter of fact, Elegancy or Erya might both be applicable for translation of English contracts. Most words in Contracts are formal ones, which equals to elegant words somehow. Estoppels, garnishee, rescind and many other legal terms are mainly used in contract only. On the other hand, some grammar rules inherited from ancient English, which is equivalent with Erya in historical position, makes contemporary English contracts sound like Shakespeare’s poems. We may use the following sentence as an instance,

IN WITNESS WHEREOF we the Secretary and two of the Committee of Management of the Society have hereunto attached our signatures.

Chinese version:

为昭信守起见,管理会秘书一人及成员两人特此签字立据。

Each character in the Chinese version and word in English version prove ya in translation of contract – elegant in word and erya in format.

George Bernard Shaw wrote that all professions are conspiracies against the laity, and no doubt the legal profession has earned its reputation for obscurantism. Generations of legal translators have refused to let their clients simply give something to someone if they can give, devise and bequeath all their right title and interest in it. With the implementations of Xin, Da and Ya, your contract will be the most professional one without any doubt. However, it is also known to all that sanctified formulas apart, the best writing is the simplest and the good contract translator expresses himself with clarity, simplicity and directness. To find the critical point of these principles may be the ultimate task of a translator to pursue.

 

15

The Features of the Translation of Contracts

  • Lexical Features

Lexical approach is essential for successful language acquisition in English for specific purposes, especially for contract translation. However, not every translator is equipped with the exact English terminology required in very specific sectors. For this reason, core and fundamental vocabulary of legal profession go a long way in helping better translation of contracts. Special lexical items appear in most professions, and every field has special vocabulary to cover abstract concepts. Danet, B. (1985) in Handbook of Discourse Analysis lists some of the major lexical differences in legalese. Some are technical terms, some are terms that have different meanings from those usually used, and some are archaic. Legal writing also uses doublets and is more formal in register. Because of such lexical choices, contract as a legal writing can be easily identified even if one only sees a fragment of the writing.

  • Technical Terms

Tiersma suggests Husing antiquated terminology bestows a sense of timelessness on the legal system as something … deserving of great respect” (1999:97) while according to Ferguson’s theory, “‘special terms for recurrent objects and events, and formulaic sequences of routines^^ seem to facilitate speedy communication. Technical terms in contract seem to be the case.

Estoppel, a word not recognized by Microsoft Office, is a typical legal term. If you have Black’s Law Dictionary on hand, you’ll get its meaning as follows,

A bar or impediment raised by the law, which precludes a man from alleging or from denying a certain fact or state of facts, in consequence of a final adjudication of the matter in the court of law.

 

A preclusion, in law, which prevents a man from alleging or denying a fact, in consequence of a final adjudication of the matter in the court of law.

A preclusion, in law, which prevents a man from alleging or denying a fact, in consequence of a contrary tenor.

  • Terms with Different Meanings

As Brenda Danet suggests, £Clegal language has a penchant for using familiar words (but) with uncommon meanings^^ (1985:279). Let us take, as an example, the word “assignment” which is generally known as “something assigned, a task or a duty. ” Chinese students of translation have learnt the word in its general literal meaning and they continue to know it as such until they have to translate an “assignment, “ which is a legal document. Of course, the first thing they have to do is to search for the meaning of “assignment” in a legal dictionary. The same applies to the words “whereas” and Hhaving regard to” among many others. In legal documents such as contracts, the above-mentioned words function as “considering” or Htaking into consideration/ and must be so translated into Chinese.

A considerable number of common words that have certain meanings in general usage assume completely different meanings in legal language. For instance, action comes to mean law suit, avoid assumes the meaning of cancel, hand is used to mean signature. Another example could be the word presents which is used with the sense of this legal documents. Finally said means mentioned before and specialty is used to mean sealed contract.

  • Archaic

It is absolutely necessary that the current use of the old words be taught to the translator before starting the actual translation process. The archaic expressions found in legal English include: hereinafter, hereto, herein, hereby, hereof, thereof, therein, thereby, thereto. etc. None of them can be translated by a single word, and translators often have a hard time finding equivalents for these archaic expressions.

This Contract is hereby made and entered into on(date).

Chinese version:

特此于 (日期)订立本协议。

Hereby refers to “by means” or “by reasons” of this. It seems that every simple sentence once using this word can be changed into a formal one.

All disputes arising from the performance of this Contract shall, through amicable negotiations, be settled by the Parties hereto.

Chinese version:

对于因履行本合同发生的一切争议,本合同双方应友好协商解决。

It can be seen here that hereto means “to this”. Synonym like hereof herein and hereunder etc. are popular in contract translation.

WITNESSETH as follows;

Chinese version:

本契约规定如下:

WITNESSETH is neither mistyping nor noun form for witness, Witnesseth, meaning “to furnish formal evidence of something”, is the Old English present indicative and third person singular verb form.

2.1.4 Latin Words and Phrases

Latin has been one of the most important lenders of the English language, especially as far as the legal vocabulary is concerned. Some Latin loanwords, such as affidavit, alias, alibi, quorum, etc., have become an accepted part of the language as a whole, while others are exclusively used in the legal domain. Some examples are: corpus delicti, ejusdem generis, ex post facto, in personam, lex loci actus nolle prosequi, per stirpes, quasi, res gestae, retraxit, sui juris, vis major, etc.

As to Latin descendants, basis, table, declaration, register, state and part etc. are examples in some aspect, while alias, amicus, curiae, nolle prosequi, res judicata keeps the original outlook. To show your proficiency in legal terms in Latin, the following legal idioms still in use may be a proof for you,

Accessorium non ducit, sed sequitur, suum principale.

Chinese version:

从物不吸收主物而从属于主物。

Caveat viator.

Chinese version: 旅客其自慎之。

Falsa orthographis, sive falsa grammatical, non vitiat concessionem. Chinese version:

拼写或语法错误并不使授让无效。

  • French Words

Another important source of the English legal vocabulary is French as the consequences of

Normandy Conquest in 11th Century A.D. MelinkofF (1963:15) reports Pollock and Maitland’s list of French words basic to the legal vocabulary which can also be found in other areas of English:

Action, agreement, assault, attorney, bill, condition, constables, contract, court, crime, damage, debt, declaration, defendant, devise, evidence, felony, grant, guarantee, guardian, heir, indictment, judges, judgement, justice, marriage, note, obligation, pardon, parties, partner, plaintiff, pleadings, police, property, purchase, robbery, sentence, servant, suit, tort, verdict.

Except prepositions and articles which are kept from ancient English, frequently used words like proposal, effect, society, assurance, insure, schedule, duly, sign, form, agree, policy, subject, rule, form, term, conditions, date, entrance and accept etc. originate from French. Besides these Englishlized ancient French, words from Legal French like estoppel, fee, simple and quash etc. remain the same as the original. However, Sarcevic, S. (1989) claimed in International Journal of Lexicography, that legal concepts are bound to be a particular national legal system and culture. French legal systems differ from Islamic law or from English law, so terms are not easily translated. For example, the French word dettes refers to both paid or unpaid debts, quite different from English debts.

  • Doublets

Doublets or in more formal terms – binomial and multinomial expressions, refer to “a sequence of two or more words or phrases belonging to the same grammatical category having some semantic relationship and joined by some syntactic device such as and or or. (Bhatia 1993:108) – Examples : signed and delivered, in yvhole or in part, to affirm or set aside, act or omission, advice and consent, by or on behalf of, under or in accordance with, unless and until… The main purpose of using two synonyms is to prevent ambiguity because most English words have several meanings. For instance, we use “ the terms, conditions and provisions of the Contract“ in line with ”合同条件、条款“ to avoid the misunderstanding as “合同期限” if we use “the terms of the Contract” only. However, the Chinese translation is not necessary to use doublets as far as the meaning has been correctly expressed. In the following paragraph, 7 pairs of synonyms are used in English but fewer in Chinese;

Together with the right for the Tenant and the servants friends and visitors of the tenant in common with the Lessors and the lessors’ other tenants of the said mansion and their servants friends and visitors to use the entrances courtyards passages staircases and lifts of any of the said mansion for the lawful purposes of ingress and egress to and from the demised premises but subject to the stipulations reservations and covenants hereinafter and in the Schedule hereto contained.

Chinese version:

此项让渡乃包括承租人及其佣仆、朋友、访客和出租人以及该涉约房屋内出租人 之其他租户以及其佣仆、朋友、访客共同有权使用该涉约房屋内任何入口、院落、 过道、楼梯及电梯,为法律允许之目的出入往来于让渡房屋之内,但此项权利须 服从于本约下文及附件之各项规定、保留及承诺。

  • Formal Register

Register refers to the language items associated with discrete occupational or social groups. As Ferguson (1994:20) says in Dialect, Register, and Genre: Working Assumptions about Conventionalization, people participation in recurrent communication situations tend to develop similar vocabularies, similar features of intonation, and characteristic bits of syntax and phonology that they use in these situation. Draftsman and translators of English contracts should be one of the most typical ones.

2.2 Grammatical Features

To illustrate the specialty in grammar and structure of contract translation, a piece of a typical insurance contract’s beginning part quoted from 《Varieties of English》 (1988:299) will show the grammatical features in both languages:

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WHEREAS a proposal to efiect with the Society an assurance on the Life Insured named in the Schedule hereto has been duly made and signed as basis of such assurance and a declaration has been made agreeing that this policy shall be subject to the Society’s Registered Rules (which shall be deemed to form part of this policy) to the Table of Insurance printed hereon and to the terms and conditions of the said Table and that the date of entrance stated hereon shall be deemed to be the date of this contract AND such proposal has been accepted by the Society on the conditions as set forth in the proposal.

NOW this policy issued by the Society on payment of the first premium stated in the Schedule hereto subject to the Registered Rules of the Society

WITNESSTH that if the Life Insured shall pay or cause to be paid to the Society or to the duly authorized Agent or Collector thereof every subsequent premium at the due date there of the funds of the Society shall on the expiration of the term of years specified in the Schedule hereto or on the previous death of the Life Insured become and be liable to pay to him/her or to his/her personal representative or next-of-kin or assigns as the case may be the sum due and payable hereunder in accordance with the Table of Insurance printed hereon and the terms and conditions of the said Table (including any sum which may have accrued by way of reversionary bonus) subject to any authorized endorsement appearing hereon and to the production of this policy premium receipts and such other evidence of title as may be required.

IF UPON THE DEATH OF THE LIFE INSURED there shall be no duly constituted personal representative or nominee or assignee of the Life Insured able and willing to give a valid receipt for the sum payable such sum may in the discretion of the Committee of Management be paid to one or more of the next-of-kin of the Life Insured whose receipt shall effectually discharge the Society from all liability under this policy.

IN WITNESS WHEREOF we the Secretary and two of the Committee of Management of the Society have hereunto attached our signatures.

Chinese version:

事由一为保险公司承保人寿保险投保人(其姓名见本单附件),已有建议提出并 经签署作为此类保险之基础;并有申明宣布同意本保险单将从属于保险公司已注 册之规则(这些规则将视为本保险单之一部分)。

本保险单在缴付首期保险费后由保险公司颁发,有关保险费详情载于附件并从属 于保险公司已注册之规则。本保险单规定如投保人按期向保险公司或公司授权之 代理人或收款人缴付或委托缴付以后各期保费,一旦本单附表阐明之年限到期或 一旦投保人于期满前先行去世,根据本单印载之保险表及该保险表规定之条件, 保险公司之经费将负有责任根据情况向投保人或其代表、至亲、受让人支付到期 应付之款项(包括任何以复归津贴方式累积之款额),其条件是须有本单显示之 授权签字并出示本保险单保险费付款收据以及可能需要之其他类似资格证明。

投保人去世时如无适当委任之个人代表或指定人或代理人能够并愿意为取得应 付款额出示有效收据,此笔款额可由管理会酌情付于投保人之最近亲属,一旦最 近亲属接受付款后,保险公司即不再负有本保险单规定之责任。

为昭信守起见,管理会秘书一人及成员两人特此签字立据。

  • Nominal Character of Legal Writing

The language of the contract is characterised by the tendency to nominalize verbs and to use nouns where verbs could be used. The presence of long sentences with only one verb is a special feature of legal documents. The beginning part of the sentence in Line 31 of the above example is representative of the nominal character of legal writings: IF UPON THE DEATH OF THE LIFE INSURED, while in normal written form it should be “when the life insured dies”.. The following example is representative of the nominal character of legal writings:

No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. (Bhatia 1993:107)

  • Complex Prepositional Phrases

Complex prepositional phrases refers to Preposition + Noun + Preposition. For instance, in Line 41 of the above example “IN WITNESS WHEREOF” is the typical one. Besides that, for the purpose of is used instead of for. In accordance with or in pursuance of are preferred to the simple preposition under. Finally by virtue of is used in place of by. As this kind of phrases serve to logically bind sentences together, and work as the cohesive word for the adverb part of the sentence, it arouses clear understanding of them and explicit translation to express the cohesive relationship between the sentences.

  • Prevalence of Passive Forms

As a matter of fact, passive forms are not encouraged in daily English by various reasons. One typical proof is that whenever you use passive form, Microsoft Word will point it out to you as a grammatical error to be corrected. However, if you read the first sentence of the above example, you will not only find it’s a typical long sentence in contract but a sentence full of passive forms including “has been duly made and signed^^ in line 2, “has been made^^ in line 3 and “shall be deemed^^ in line 8. It shows the prevalence of passive forms in English contract. On the contrary, passive forms are not that popular in Chinese contracts, so in the translation all these passive forms disappeared and are replaced by “为 保险公司承保人寿保险投保人(其姓名见本单附件),已有建议提出并经签署作为此 类保险之基础;并有申明宣布同意本保险单将从属于保险公司已注册之规则” where no subject can be found and no “被”is used to indicate passive form as well, thus to make the translation readable.

  • Importance of Modality

Modal verbs are fundamental for the interpretation of legal documents since they carry the meanings of permission (may), ordering (shall) and prohibition (must not). As to the above example, ccshalF, has been used in line 4, line 7, line 14, line 15, line 26 and line 30 for 7 times, but no equivalent translation like “应该”used in Chinese translation. The translator use affirmative tone in translation instead of modality words. On the other hand, “may” appeared 4 times in line 18, line 21, line 24 and line 28. Unlike “shall”, most of them have been translated into Chinese but different words including “根据情况”for that in line 18 and “酌情”for that in line 28 are used. As these important modalities play an important role in deciding either party’s liabilities and rights when applicable, they require great attention in the process of contract translation.

The adequacy of translations has traditionally been judged on the basis of the correspondence in lexicon and grammar between the source and target languages (Nida 1991:116). Therefore, before we discuss the translation of contracts in terms of strategies, it seems to be noteworthy to understand the lexical features including Technical Terms, Terms with Different Meanings, Archaic, Latin Words and Phrases, French Words and Doublets; and grammatical ones including Nominal Character of Legal Writing, Complex -Prepositional Phrases, Prevalence of Passive Forms and Importance of Modality.

 

Chapter 3

Analysis on Errors in Contract Translation

Translation of contracts, from English into Chinese and visa versa, poses problems closely related to both the nature of legal language and the specific features of both English and Chinese legal systems and languages. The examples that follow cover a wide range of errors in contract translation, while reasons vary from simple grammar to complicated legal system.

  • Grammatical Errors

Accuracy in grammar seems to be the most fundamental requirement for translation. However, misusing of single and plural forms, articles and conjunctions is popular in contract translation.

  • Single and Plural Forms

Single and Plural forms of nouns should be the basic of basic English. However, in contract translation, a same word might have totally different meanings in single and plural forms.

One simple example is “civil damage^^ and “civil damages”. Few translator do not know the meaning for the former which is “民事赔偿”in Chinese while few translator know the correct translation for the latter. Does “civil damages^^ refer to several “‘civil damage’s? If you read the following definition of “damages”, the answer will be concluded easily.

Damages. A sum of money awarded to a person injured by the tort of another … Money compensation sought or awarded as a remedy for a breach of contract or for tortuous acts.

——BlacVs Law Dictionary (6th. Ed. & 7th Ed.)

Needless to say, “Civil damages^^ has its own meaning which is the compensation amount for the civil damage, and the equivalence in Chinese should be “民事赔偿金

Similar problems happen to equity(公司普通股)and equities (证券),and security (担 保)and securities (证券),etc.

  • Articles

Articles, i.e. “a” or “the”, is one of the first English words that everyone learned. Therefore, contract translators are always trying to use more formal words instead, e.g.

土地使用权使用期满,土地使用者可按规定申请续期。

English version:

Upon expiration of the term of land use rights, a land user may apply for extension of such term according to the regulations.

According to Section 9.6 of The Fundamentals of Legal Drafting, Dickerson, F. Red, although the word “such” is commonly used by lawyers as a demonstrative adjective (i.e., as a word pointing at a particular person, object, or entity already referred to), this use is undesirable because (1) it is contrary to general writing usage, (2) it is a stilted way of saying something better expressed by “that”, “the”, “those” with the more appropriate uses of the word (e.g., as a synonym, when followed by “a” of “as,” for “that kind”), “it”, “them”, etc., and (3) it is easily confused. The underlined “such” in the aforementioned sample should be changed into a simple “the” to make the sentence clearer.

  • Conjunctions

In contract translation, a typical feature is joining together the words or phrases with the conjunctions “and, or” in English and ”和,或”(meaning “and,” “or”) in Chinese. Tiersma suggests that these conjunctions are used five times as often in legal writing as in other prose styles (1999: 61). According to F. Reed Dickerson’s definition in The Fundamentals of Legal Drafting regarding uncertainties in the use of “and” and “or”: The difference between “and” and ” or” is usually explained by saying that “and” stands for the conjunctive, connective, or additive and “or” for the disjunctive or alternative. The former connotes “togetherness and the latter tells you tocc take your pick.”

“And” and “or” has Chinese functional equivalent of “和”and “或”respectively. In chasing the formality in contract translation, it becomes a trend to use “and/or” or “和/ 或“instead of simply “and” or “or” or “和”and “或However, c^and/or^^ has been scolded in American legal system for years.

And/or, a legal and business expression dating from the mid – nineteenth century, has been vilified for most of its life, often unfairly. Lawyers have been among its most ardent haters, though many continue to use it. The term has been referred to as “that befuddling, nameless thing, that Janus – faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning.^^ Another court has stated: “To our way of thinking the abominable invention and/or is devoid of meaning as its incapable of classification by rules of grammar and syntax.”

—A Diction of Modern Legal Usage

To avoid the ambiguity and misunderstanding created by “and/or”, please do think twice when you are translating “和”and “或

  • Mechanical Translation Errors

Word-for-word translation should be one of the most fundamental ways to translate. However, in contract translation, the denotation of a word may result in misrepresentation if it has been ignored and translated mechanically. Such problems do happen in translating contract from English to Chinese and vice-verse.

  • Mechanical Translation Errors in Translating Contract from English to Chinese

In translating contract from English to Chinese, mechanical translation may create problems in many cases. The translation of “good will“ is one simple example. In accordance with the word-for-word principle, it should be translated into “好意”,but it should not be translated so in contract. Referring to Random House Dictionary of the English Language, 2nd ed. 1993, the definition of “good will” is as follows:

Good will: 1. friendly disposition; benevolence; kindness. 2. cheerful acquiescence or consent. 3. an intangible, salable asset arising from the reputation of a business and its relations with its customers. Distinct from the value of its stock and other tangible assets.

Therefore, rather than meaning 1 which can be translated into “好意”in Chinese, in contract, good will should be translated into “商业信誉

  • Mechanical Translation Errors in Translating Contract from Chinese to English

In most of the cases, mechanical translation errors in translating contract from Chinese to English are caused by the ambiguity of Chinese language itself. The following examples illustrate how the exactly same Chinese word should be varied in translation instead of being translated into English by one same word mechanically,

当开证行用经证实的电讯传递指示通知行通知信用证或信用证的修改时,该电讯 传递将被认为是有效的信用证或有效的修改通知,无须再寄证实书。

English version:

When an Issuing Bank instructs an Advising Bank by an authenticated teletransmission to advise a Credit or an amendment to a Credit, the teletransmission will be deemed to be the operative instrument or the operative amendment, and no mail confirmation should be sent.

凭不可撤销的即期信用证付款,并与上述装运期后十五天内在中国议付有效。

English version:

By irrevocable Letter of Credit to be available by sight draft and to remain valid for negotiation in China until the 15th day after the aforesaid time of shipment.

除非由于下述第12条规定,导致合同提前终止,本合同自签署之日起,一年内 保持有效。

English version:

Unless sooner terminated as provided in Article 12 hereunder, this contract shall remain in full force and effect for one year as from its date of execution.

As noted above, the adjective ”有效”is translated into totally different adjective or noun phrases in these three examples. Thus three different adjectives which are from operative to valid, till in full force and effect are used in the target text for a single adjective ”有效” in the source text.

3.3 Laymen Errors

Most of the English speaking countries, especially America (except Louisiana), England are Common Law countries, which originate from Anglo-American Law system; while most of the characteristics of Chinese legal system are attributed to Civil Law system. Errors arising due to the differences in legal systems or the lack of an established terminology in the field of legal knowledge are another kind of major errors made in the process of contract translation.

  • Errors made by Laymen of English Legal System

The common law system has a lot of traditional terms, which have been used for centuries. As a common mistake found in some Chinese legal dictionaries, cctenancy^^ is one of the samples. “Tenancy by the entirety^^ has been translated into “整体租赁”according to several English – Chinese dictionaries published in China. However, 《香港法律词7匚 (Hong Kong Legal Vocabulary)》and《英汉法律大词典(English – Chinese Legal Dictionary )》translate “tenancy” into “置业”or “所有”,close to ownership. The latter is published in Hong Kong, a city having been colonized by common law system for a century. Maybe this is the reason why they have the correct translation version. In another word, the former is totally wrong. The definition of “tenancy” and “tenancy by the entirety^^ in A Dictionary of Modern Legal Usage are as follows:

Tenancy …meaning (1) “a holding or possession of lands or tenements, by any title of ownership”; (2) “occupancy of lands or tenements under a lease”; (3),,that which is held by a tenant”;(4) “the period during which a tenant occupies land or a building.^^

Tenancy by the entireties; tenancy by the entirety. The phrase refers to a joint tenancy between the husband and wife; …the plural form entireties is slightly more common in both AmE and BrE, although Black’s (6th ed.) contains its definition under tenancy by the entirety, which is also widespread.

Well , now you can conclude the correct answer for ” Tenancy by the entirety”, it should be “夫妻共有”,which is faraway from your first understanding of tenancy. Similar errors may be confronted in all kinds of English contracts, and the best way to concur it is to change your layman position.

  • Errors Made by Laymen of Chinese Legal System

If English terms hinder your way in translating contract from English to Chinese, unique legal terms in Chinese law system will do the same.”提存”as one way to perform the contract according to the Contract Law and Civil Law in China, is one of obstacles if you search for the English translation in popular dictionaries:

提存 drawing  1995年中国商业版《英汉法律词典》

提存 deposit  1996年外文版《英汉法律词典》;

1997年上海人民版《民商法词典》

The Chinese definition of “提存”as a legal term is “债务人已届履行期限,将无法履行的 给付提交提存机关以消灭其债务的制度Therefore, it has nothing related to “drawing” or “deposit”. Prof. Cheng Zhongcheng (陈忠诚)proposed “escrow“ as the closest answer, which has the following definitions,

Escrow has three noun senses: (1) “ a deed delivered but not to become operative until a future date or until some condition has been fulfilled”; (2) “a deposit held in trust or as security^^ or (3) “an escrow holder”.

A Dictionary of Modern Legal Usage

This is also supported by Mr. Liang Shi Qiu (梁实秋)in his edition of《远东英汉大辞典》 as follows:

Escrow…n.[法律](寄存于第三人处,以待某种条件完成后始交付受让人的…)

This chapter attempts to lay out the main kinds of errors in contract translation in order to put forward the practical basis for strategies for contract translation. When people are translating contracts from English to Chinese or vice-verse, grammatical errors, mechanical translation and laymen errors need special attention.

CHAPTER 4

The Strategies for the Translation of Contracts

The most daunting aspect of contract translation common to almost every language is the culture-specific quality of the texts. As Martin Weston suggests, “the basic translation difficulty of overcoming conceptual differences between languages becomes particularly acute due to cultural and more specifically institutional reasons” (1987:207). Newmark also suggests that “a word denoting an object, an institution, or if such exists, a psychological characteristic peculiar to the source language culture is always more or less untranslatable” (quoted in Weston 1987:207). The equivalence of an institution, a division, a concept, or a term may not be found in the target language一in our case, in Chinese. There are no words in Chinese to express some of the most elementary notions of British law. The words Hcommon law” and Hequity” are only two of the examples. There is no system of Hcommon law** and “equity” in the Chinese legal system. Moreover how should we translate “barrister” or “solicitor” into Chinese as there are no such job titles in the Chinese legal system. A Chinese legal translator may overcome the difficulties of translating English contract into Chinese and vice-versa by using the following methods:

  • Paraphrasing

This method is explaining the SL concept if it is unfamiliar to the target reader, when there is no equivalent institution or concept in the target culture and when a literal translation will make no sense.

As we have mentioned above, the translation of “提存”is problematic, since in the English legal system there is no such term. As we know, in the British legal system, ^^escrow^^ is widely used in contract performance and has at least three meanings:

  1. A legal document or property delivered by a promisor to a third party to be held by the third party for a given amount of time or until the occurrence of a condition, at which time the third party is to hand over the document or property of the promisee.
  2. A security device: one or both parties to a transaction deposit property or an instrument with a third party until some condition has occurred.
  3. An account held in trust or as security. -Also termed escrow account.

——Black飞 Law Dictionary (6th. Ed. & 7th Ed.)

As a concept, C^escrow^^ covers only part of the meaning of ” 提存”according to the said definitions. In order to get the correct translation of it, the verb form of escrow is needed as well.

The verb uses of escrow, recorded from 1916, are now common in American legal writing. As a verb, escrow means to put into escrow[sense(2)],\

A Dictionary of Modern Legal Usage

Using paraphrasing as an strategy,“提存“,like other unique legal term in Chinese Civil Law, to express the full meaning instead of one simple word, should be translated into uShould a promisee refuse to accept the due performance of the promisor, the promisor may escrow the same in order to perform and fulfill his obligations,?.

  • Finding the Functional Equivalence

Dr. E. Nida, is sure to be one of the most influential persons in translation theories. A minimal, realistic definition of his famous concept of ^Functional Equivalence^^ is that “The readers of a translated text should be able to comprehend it to the point that they can conceive of how the original readers of the text must have understood and appreciated it” while a maximal, ideal definition of this concept could be stated as “The readers of translated text should be able to understand and appreciate it in essentially the same manner as the original readers did.” (1991:118) The relatively modern translation theory, to some extent, shares something in common with the principles of faithfulness and expressiveness that have prevailed in China for centuries and will be discussed in the following paragraphs.

Finding the functional equivalence, is using a TL expression that is the nearest equivalent concept. Of course it is much more difficult to find the functional equivalent of a legal SL term where the legal systems of two cultures do not have much in common.

To quote an example that is simple but problematic mostly fbr translators between English and Chinese contract: “Company” and “Corporation” have the same Chinese functional equivalent of “公司Moreover, the generally used Chinese functional equivalent of “公 司“implies that the entity is “法人” which is the literal translation of “legal personality. However, according to A Dictionary of Modern Legal Usage, there is substantial difference between “Company” and “Corporation” in terms of legal personality.

Company; corporation. At common law, the technical legal term fbr an entity having a legal personality was corporation. The word company could refer to a partnership or other unincorporated association of persons. In current usage, however, company almost always refers to an incorporated company -i.e., a corporation.

In another word , in Chinese law, corporation deserves the Chinese functional equivalent of “公司”whereas company might not.

Furthermore, incorporator is another example fbr which functional equivalent could be found. Some translators translate it into “公司组织者”according to its literal meaning. This translation is correct in the meaning but you can find a more equivalent one which is “发起人”if you read through the Company Law of China by comparing the definition and functions of the incorporator. Translation of ” incorporator ” as “发起人”is rendering the functional equivalent of it.

However, using this method frequently leaves the translator short of terminology due to the different structures of the legal systems of the Chinese and Western countries.

  • Literal Translation

Convinced that the main goal of legal translation is to reproduce the content of the source text as accurately as possible, both lawyers and linguists agreed that contracts had to be translated literally. This is translating lexical word for lexical word, and making adjustments of prepositions, endings, and other grammatical features if necessary. For example, in translating the jurisdiction of the contract drafted with British legal system, “Court of Protection” is translated directly as “保护法庭”while the words change place so as to ensure the correct syntactic arrangement in Chinese. Other examples may include the translation of “Treasury Solicitor** as ”财产律师”,”Courts of Chivalry” as “骑士法庭”.

On the other hand, when the source text is in Chinese, and when it is translated into English, it makes a difference whether the target text is directed to American or English culture, because the terms and institutions of different cultures using the same language may be different. For example, in loan contract,”抵押”in Chinese legal system may be applied to both real properties and other properties, but in the British System is “mortgage” and it only refers to real property. Nevertheless,the same word in the American system covers personality as well as realty.

mortgage, n., = a property owner’s promise that, if some obligation is not met, the creditor may take the property to satisfy that obligation. At common law , the word referred only to real property. But in mid-19th century AmE, the word mortgage was extended to apply to personality as well as realty.

——A dictionary of Modern Legal Usage

Therefore, in translating “抵押”into English, the best way is to use “mortgage” as the literal translation but keep the subject of “抵押”after it to make the translation explicit and avoid mi sunder standi ng which might occur due to different legal systems.

  • Accurate Selection of Modality

As addressed in Chapter 2, modal verbs are fundamental for the translation of contracts since they carry the meanings of permission (may\ ordering (shall) and prohibition (must not). Modality plays an important role in contract discourse. For instance, in legislative texts “‘mandatory or directive and discretionary or permissive rules1 can be distinguished depending on the particular modal verb used. The following example shows how the use of a particular modal verbs instead of another changes the meaning of a sentence:

  • Mandatory rule

This contract shall come into force on 1st January 1999.

Chinese version:

本合同自1999年1月1日起生效。

  • Discretionary ruleSuch sum may in the discretion of the Committee of Management be paid to one or more of the next-of-kin of the Life Insured.

Chinese version:

此笔款额可由管理会酌情付于投保人之最近亲属。

“Shall” and “may” as the most frequently used words in contracts, might be another good example to illustrate. When we study the grammar of the English language, Chinese students learn that “shall” is the modal verb indicating futurity, and therefore they tend to translate the sentences containing Hshall” as future tense into Chinese. However, as Danet suggests (1985:281), in formal English legal language, “shall” is used to express authority and obligation, rather than futurity. If a right, privilege, or power is conferred, the translator should use “may,” except that when an intended right might be construed as merely an unenforceable privilege, he should use “is entitled^^; if it is abridged, he should use “may not” If an obligation to act is imposed, he should use “shall not.” Maybe however, when a power conferred on a public authority is liable to be construed by the courts as a duty, the word “may” ought to be followed by words such as “in his discretion^^ unless “may ” has been expressively defined as being only permissive. The translator should avoid the common error of using “shall” to confer a right when the recipient is the subject of an active sentence. A right should not be stated as a duty to enjoy the right. Literally, “No person shall” means that no one is required to act. Thus, it negates the obligation, but not the permission to act. On the other hand, “No person may“ negates also the permission and is, therefore, the stronger prohibition. Therefore, the accurate selection of modality should be one of the most important issue to pay attention to in terms of contract translation.

  • Vague words for Vague words

Vague words and phrases are deliberately and consciously used in legal English to allow a certain flexibility in interpretation. Some terms of this kind are: about, adequate cause, apparently, approximately, as soon as possible, average, convenient, doubtless, excessive, extreme cruelty, fair division, gross profit, improper, it yvould seem, luxury, malice, more or less, nominal sum, objectionable, obscene, reasonable care, satisfactory, sufficient, undue interference, unsatisfactory, valuable, worthless (Mellinkoff 1963:21-22)

How to make these vague words accurately translated into Chinese? The best solution seems to be use corresponding vague words. One example is the translation of “substantially“ certain. Most people translated it into “必然结果However, according to Random House Dictionary, the meaning of “substantial” is as follows:

  1. of ample or considerable amount, quantity, size, etc.;
  2. basic or essential; fundamental;
  3. of real worth, value, or effect;
  4. of or pertaining to the essence of a thing; essential, material, or important.

On the other hand, in legal forum, “substantial” refers to “‘essentially; in the main; materially, about, actually, competently, and essentially^^ defined by Black Legal Dictionary. Therefore, instead of “必然结果”,a definite word in Chinese, the best translation for “substantial“ as a vague word here should be “基本确定” to specify the slight uncertainty and vagueness.

When we translate, we are translating with four levels more or less consciously in mind: “(i) the SL text level of language; (ii) the referential level…; (iii) the cohesive level, which is more general and grammatical, … and (iv) the level of naturalness, of common language appropriate to the writer or the speaker in a certain situation.^^ ( Newmark, 1988:19) In this chapter, options have been put forward to work as strategies for contract translation to help the translators to realize this goal.

 

Conclusion

The language used in the contract is the legal variety of a language in which the people concerned will want to know exactly what the rights and obligations are, and moreover will be anxious to see that no other person can alter them. Hence when documents are drawn up, extreme care has to be taken to be precise and unambiguous about the facts and the agreement concerning them. The constant attempt to attain these ends had led to the development of a language of great complexity or with the most redundancy, and to the layman often obscurity. In translation all these characteristics should be put into considerations.

Sarcevic suggests that the traditional principle of faithfulness has recently been challenged by the introduction of new bilingual drafting methods that have succeeded in revolutionizing legal translation. Contrary to freer forms of translation, legal translators are still guided by the principle of faithfulness; however their first consideration is no longer faithfulness to the source text but to guarantee the effectiveness of multilingual communication in the legal field (1997:16).

While lawyers cannot expect translators to produce parallel texts that are identical in meaning, they do expect them to produce parallel text that is identical in their legal effect. Thus the translator’s main task is to create a text that will produce the same legal effect in practice. To do so, the translator must be able “to understand not only what the words mean and what a sentence means, but also what legal effect it is supposed to have, and how to achieve that legal effect in the other language (Sarcevic 1997:70-71).

Translators must be able to use legal language effectively to express legal concepts in order to achieve the desired effect. They must be familiar with the conventional rules and styles of legal texts in every field of the individual legal systems. A legal translator must not forget that even a will is not valid if not written in the correct style.

In this paper we have tried to cast a glance at the overall principles, features and strategies for the translation of contracts as a type of legal instrument. In doing so, our objective has been to highlight the importance that the translation of contracts -as the communicating tool of a very specialized community- has in the wording of the text itself, as well as the differences that can be drawn between this type of legal system with an international projection in large-scale business transactions today. Although the terminographer Daniel Gouadec says that identifying only one term for a specific concept, object, or situation is impossible (1990:XVII), the necessity for each field of subjects to describe, standardize, and teach its terminology has now become evident in the age of ever increasing international relationships. As translation is called “ a Catalyst for Social Change in China” (Kenan 2002:160), I hope that this thesis will pose further research questions in this relatively neglected area – contract translation, a field of study very much in need of theoretical and practical enlightening.

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