英文合同的文体特征及其汉译A Study of the Stylistic Features and E-C Translation of Contracts

A Study of the Stylistic Features and E-C Translation of Contracts

英文合同的文体特征及其汉译

ABSTRACT

With the development of economic globalization and China’s opening to the outside world, contract translation is showing more and more importance. Contract belongs to a type of legal document, while traditional legal translation theory over-emphasizes strict literal translation. Nowadays, people come to realize that the creativity of legal translators assumes an important role in contract translation and directly influences the quality of translation. Nevertheless, it is not yet agreed upon how far the legal translator can stretch their limited freedom. On the other hand, it is widely acknowledged that style is a very important element to be considered in contract translation and many researches have been carried out in this respect, whereas most studies remain traditional, characterized by general and impressionistic comments or by intuitive analysis, which bypass the realities of the legal text.

Through the analysis of some samples, tliis thesis generalizes the stylistic characteristics of English contracts at lexical, syntactic and textual levels. Then it further discusses the E-C translation techniques of contracts.

At lexical level, English contracts mainly demonstrate the following characteristics: the frequent use of archaic words, formal words, and synonyms. Their characteristics at syntactic level are more complex. This thesis analyses them in terms of conditional adverbial clauses, long sentences, and declarative sentences. At textual level, it is found tliat simple present tense and lexical reiteration are used tliroughout a contract.

The translation standards of contracts are discussed by analyzing a series of famous translation theories. A good rendition of contracts at first should be faithful, not only to the original text’s content, but also to the style. Secondly, it should be smooth and conform to the target language’s expressing habits. Whafs more, translators should adopt literal translation as the main translation strategy. As to the specific E-C translation strategies of contracts, this thesis studies at lexical, syntactic and textual levels on the basis of their stylistic characteristics. At lexical level, the translation of archaic words, shall, and synonyms is discussed. At syntactic level, this thesis analyses the translation techniques of conditional clauses and long sentences. With respect to textual level, this thesis emphasizes that tlie translators should keep the consistency of the expressions.

In general, the translators should keep in mind that in their E-C translation of contracts they should be faithful to the content as well as to the style. What’s more, they should make their rendition smooth and idiomatic and let Chinese readers have a similar response as that of the source language readers.

Key words: contract, stylistic features, E-C translation

摘要

随着经济全球化的发展和中国对外开放政策的进一步深化,合同翻译愈来 愈显示出其重要性。合同属于法律文件的一种,长期以来人们一致认为翻译法 律文件应当严格直译。近年来人们逐渐认识到译者的创造性在法律文件翻译中 的重要性,然而在译者享有的自由度问题上还未达成普遍共识。另一方面,人 们普遍同意法律翻译中目标文本应重现原文文本的文体,许多人在这方面做出 了许多研究。然而法律文件文体翻译研究还处于非常落后的状态,表现为对文 体非常笼统,印象化的评论,而忽略了法律文本的实质。

本文通过对英文合同的实例分析,得出了其在词汇、句法、篇章等层面的 文体特征,并继之探讨了英文合同的汉译技巧问题。

本文从词汇、句法、篇章三个层次分析了英文合同的文体特征,其中以句 法分析为重点。英文商务合同在词汇方面的特征主要有使用古体词、正式词和 并列词语等几方面。在句法方面的特征比较复杂一些,论文主要对条件状语从 句、长句、陈述句等几种句子类型进行了分析。篇章层次上主要表现为所用词 汇的前后一致性。

结合古今中外翻译名家的翻译理论,此文界定了合同的翻译标准。作者认为: 一篇好的商务合同翻译首先要忠实,不仅忠实于原文内容,而且要忠实于原文的 文体特征。其次要通顺,符合译入语的表达习惯。翻译方法应以直译为主。至于 具体的英汉翻译技巧,论文结合英文合同的文体特征,从词汇、句法、篇章层面 展开论述。在词汇层,此文主要探讨了古体词语和并列词语以及shall的汉译问 题。句法方面,论文阐述了条件状语从句、长句、陈述句的翻译技巧。篇章方面, 本文强调应要保持英语原文文体特色,要保持所用词语的前后一致性。

总之,译者在对英文合同中译时,既要忠实于原文内容,又要忠实于原文 的文体风格,同时还要语言通顺,符合汉语的表达习惯;使读者得到如同读本 族语一样的感受。

关键词;合同,文体特征,汉译

CONTENTS

  • e Introduction… 1

. ■

 

■ ■

Chapter Five Conclusion   55

REFERENCES   58

ACKNOWLEDGEMENT 61

 

Chapter One Introduction

  • Significance of E-C Contract Translation

1 ,

With China’s carrying out the policy to promote reform and opening to the outside world, the establishment of market economy, the rapid development of our communication with foreign countries and China’s entry to the WTO, there are more and more opportunities for us to communicate with those countries whose official language is English. When communicating with individuals, legal persons or other organizations from the English speaking countries, we often need to sign English contracts with them. Contract plays an important role in international economic and trade activities, as all achievements thereof will be finally embodied in it.

Language is a medium of communication. But language is much more than merely a means of communication. It is also a way of signaling, consciously or unconsciously, that we come from a particular area, or belong to a certain social group (Tiersma, 1999:51). Every field of expertise develops its own language features (Gibbons, 2003:36). Generally speaking, the language of English used in contracts, or contract English, is an important branch of legal English. Legal English means the language of the law of England, America, and some other countries whose official language is English. These common law system countries have a history about several hundred years to express law in English. Legal English is a type of legal language with overlap of linguistics and the science of law, like English for science and technology, medical English, commercial English, financial English, and advertising English and so on. Legal English belongs to the category of applied linguistics. In this thesis, we don5t want to introduce the history of contract English. The main task of it is to analyze the stylistic features of modern contract English and E-C translation of contracts.

Since English is universally accepted as a commercial language, it is a usual practice in our foreign trade to conclude contracts in both English and Chinese languages; that is first to draft a contract in one language and then to render it into the other. Lord Mansfield, one of the most famous English judges, once observed that “most of the disputes in the world arise from words”. He told us the significance of language. If one can command contract English quite well, it may be easier for him to read the English contract. It is highly possible that he could study and understand English contracts better than those who know little about contract English. However, in our country and abroad, there are few books or articles talking about the language of contract. The language of contract is quite often ignored.

Generally no matter which is the source text and which is the target one, once concluded they are both considered parallel and are both equally effective. The parallel texts of contracts set forth the obligations and rights for the contracting parties, so as to constitute the law that they must abide by. Therefore, translation of contracts leads to legal effect, and how to translate a contract into an equally enforceable one in other language is essential to protect the benefits of contracting parties and to ensure the successful execution of the agreement, hence to standardize the order of international market and to promote international economy and trade.

Nevertheless, E-C translation of contracts, a sub-register of legal language, has long been neglected in translation study. It is regarded by translation theorists merely as one of the many subject areas of special-purpose translation, a branch of translation studies often snubbed for its alleged inferiority. Such being the case, this thesis is designed for the research of contract translation with a hope to arouse more attention in this field.

  • Difficulties of E-C Contract Translation

As mentioned above, legal language is different from other varieties. Consequently, its translation must also have its peculiarity, while E-C translation of contracts is distinct even from that of other sub-varieties of legal language.

■ ■ . .■

First of all, as contracts concern the imposition of obligations and the conferring of rights, their wording must be extremely precise and exact. Otherwise misinterpretation may arise. Therefore, in translating contracts, translators will face more restrictions. They must bear in mind that the precision of wording is of utmost importance, thus, every word has to be rendered, and differences in terminology and function have to be noted. Furthermore, the standard format, syntax and the formality of the original have to be respected as well (Newmark, 1981:47). If they fail to do so, ambiguity and misinterpretation may ensue.

Another thorny issue in translating contracts is that such translation should be interdisciplinary, which requires that both linguistic and legal aspects should be taken into account. As the legal aspect is involved, some concept in congruencies can be easily identified, especially in E-C translation of contracts. Owing to differences inherent in Chinese and Western legal systems (He Jiahong, 1997:3), translating terms of western legal systems sometimes present difficulties. Under such circumstances, translators occasionally have to coin words in Chinese by combining two or more ideograms. The new terms may consist of words from ordinary language or a combination of legal terms and ordinary words (Sarcevic, 1997:264). However, translators are warned against willful use of coinage. After all, coined words may arouse ambiguity which is detrimental to honoring contracts.

In addition, particular stylistic features also constitute hardships in E-C translation of contracts. English and Chinese are different from each other in that the former is hypotactic while the latter is paratactic, and each has its own word order and way of expression (Cheng Dingan, 1998:5). Therefore, contracts in English and Chinese, in terms of syntax, are sometimes quite different. In the translation process, translators have to transform the hypotaxis into the parataxis, properly handling all the linguistic discrepancies. Without a good command of the two languages, translators can not be competent, while translations can not be adequate as well as idiomatic.

This thesis will examine the conventions of language used in English contracts and E-C translation of contracts in a more systematic way and a lot of examples are cited to support those points.

 

Chapter Two General Study of Contracts

  • A Brief Introduction to Contracts
    • What is a Contract?

The definition of contract in the China’s Contract Law stresses its functions, saying that “A contract refers to an agreement establishing, modifying and terminating the civil rights and obligations between subjects of equal footing, that is, between natural persons, legal persons or other organizations”. (The 2nd article, China5s Contract law)

Many contracts use the word agreement in the title. In some contexts the two words, contract and agreement, are synonyms and can be used interchangeably. While contract and agreement may both be used to mean a formal and legally enforceable arrangement, agreement may also refer to an informal arrangement not supported by consideration, such as an agreement between friends to play tennis on Saturday morning. So an agreement is really the main ingredient of a contract. But it is not every agreement that becomes a contract. To be a contract, that agreement must be enforceable in law.

According to the definition, we can summarize the legal characters of contracts as follows:

  • The establishing of a contract is a legal behavior. Contractual parties, for a certain legal purpose, establish a relationship of rights and obligations. This relationship is protected by law and any party shall bear responsibility should they fail to perfonn contract obligations.
  • Contract is an agreement between two or more parties, but not any kind of agreement is a contract. Only those agreements that can establish change and terminate the relationship of rights and obligations between subjects are contracts.
  • Contract is established between people on equal footings.
    • Classification of Contracts

There are many kinds of contracts in use throughout the globe, such as Contracts for Sale of Goods, Contracts for Technology Transfer, Contracts for Sino-foreign Joint Ventures, Contracts for Sino-foreign Contractual Joint Ventures, Contracts for Engineering Projects, Contracts for Compensation Trade, Contracts for Sino-foreign Cooperative Development of Natural Resources, Contracts for Foreign Labor Services, Contracts for International Leasing Affairs, Contracts for Sino-foreign Credits and Loans and Contract for International Build-Operate-Transfer, etc.(Mo Zaishu, 2003). Different kinds of contracts may involve knowledge of different areas, like economics, trade, finance, law, science and technology, and so on. A successful translator should get familiar with the relevant cognitive knowledge in order to make a correct comprehension of the original contract, which is the basis of re-expression in the target language. Different as they are, these kinds of contracts, as legal documents, share common features in language, structure, and writing style.

  • The Making of a Contract

In his book Precedents and Forms of Conveyancing, Davidson lists five principles in drafting contract. Among them the forth principle is “The ordinary and accustomed fonns of documents and technical language should be used^^ and the fifth, principle is “Legal language should be precise and accurate. Every phrase should have a clear meaning and all the phrases should be so connected as not to give rise to ambiguity. Aim at accuracy. Omit superfluous phrases. Give correct references and adhere strictly to the rules of grammar as by the use of apt words.”

(Ge Yajun, 2002:129-130)

Catherine Tay Swee Kian and Tang See Chim from Singapore say in their book Contract Law that “In drafting contracts, it is advisable to draft the document in language that is precise and technical though not necessarily easy to follow. Contracts shall be made complete, exact, and clear and keep within the rules of English grammar..(Ge Yajun, 2002:127)

The above mentioned ideas show us the basic requirements of drafting contracts.

In Contract Law, Tay Swee Kian and Tang See Chim mention the two problems should be solved in drafting contract:

One is the use of long uncommon words or long sentences in contract. The other is the use of too many archaic words. They say, “Such archaic words or expressions as whereby, hereinafter that are not customarily used in everyday life should be replaced by words in current use. It is not wise to have too many of them.” (Ge Yajun, 2002:131)

From my point of view, the long sentences, archaic words and technical terms are the features of contract English, without them the contract English is no different from the general English. Short sentences cannot always be used in legal documents because technical legal expressions may sometimes have to be used in preference to short sentences and the archaic words, if carefully but not superfluously used, can be an aid to exact expression.

Chapter Three Stylistic Features of Contracts

  • Lexical Features of Contracts
    • Formal Words

The formal language indicates that this is a special occasion, quite different from ordinary discourse. Formal language is one of the traits of the contract lexicon. Compared with general English, contract English is very formal. There are a lot of formal words, which are rarely used in general English, used in contract. Here we list just a small sampling:

Formal words

approximately commence/initiate construe

convene employ notify present execute terminate

in the event of prior to

with regard to

Common words

around beginlstart explain

call

use tell give sign end

in case of before about

 

Not everyone knows what initiate or terminate means, but virtually any speaker of English understands begin and end. Many people have limited exposure in their daily lives to highly formal vocabulary. Because people mostly learn the meanings of words by hearing them used.

  • The Agreement shall commence on this day and automatically terminate upon the bankruptcy or insolvency of either of the parties hereto.
  • Party A shall pay to Party B forty per cent of the total price for work, i.e.,two hundred, and eighty thousand (280,000.00) U.S. dollars only at the commence of construction work of Party A1 s plant; and sixty per cent of the total price for work, i.e., four hundred and twenty thousand (420,000.00) U.S. dollars only upon the completion of the work.
  • The participants in the Joint Venture shall commence discussion with regard to the extension of the period of existence of the Venture and in the event of their agreeing upon such extension, they shall record such agreement in written document signed by all of them not later than three years prior to the expiry of the current period.
  • The term “Effective date” means the date on which this Agreement is duly executed by the parties hereto.

In the four sentences cited above, commence, terminate, at the commence of, upon the completion of, with regard to, in the event of, prior to, executed mean respectively: begin, end, at the beginning of, at the end of, about, in case of, before, signed. The former words are more formal than the latter ones, which make the contract sound formal.

 

  • Archaic Words

Archaic words are old-fashioned words which point to another part of the text in which they are found, or to another place or time (Gibbons, 2003:41). They are the Old and Middle English words, Old English is the name given to that form of the English language cunent in England before the Norman Conquest and down to about 1100. Middle English covers the period 1100 to about 1500.

Language changes continually, but legal language is conservative, tending to resist change and changing (Hiltunen, 1990:17). Legal language retains numerous Old and Middle English words and meanings which have long since passed out of general usage. Lawyers tend to believe that these archaic words enable clearer and less ambiguous reference and give greater weight and authority to the language (Gibbons, 2003:41). Words like herein and therein may sometimes lead to economy of expression when they replace a longer phrase like in this document or in that clause (Tiersma, 1999:94). As a typical legal document, a contract preserves some archaic words, which are daily bread for the lawyer but to which most non-lawyers are exposed on infrequent occasions. Such kind of archaic words is the old words which are not used now except for special purposes, so to many modem English users, it is just like another language difficult to understand.

Archaic words are a part of vocabulary with stylistic coloring. Qin Xiubai states in his book Elementary English Stylistics that we no longer use archaic words in spoken English. However, in religious English, and literature as poetry, newspaper and so on, archaic words are used sometimes. While in legal English, they are widely used. As Crystal D. and Davy D. (1969:207) write, tcIt is especially noticeable that any passage of Legal English is usually well studded with archaic words and phrases of a kind that could be used by no one else but lawyers.n So we can find that as the important branch of legal English one of the most remarkable features of contract English is the use of archaic words. Their actual use can be seen 10

 

in the following example:

This AGREEMENT is made the 9th day of August, 2001 between LUCKY INTERNATIONAL LTD, a company incorporated in Singapore and having its registered office at Telek Blongar Rise, Singapore 19569 (hereinafter called “the Company the one part and JACK Wong (NRIC No:/A) of 108 Orchard Road, Singapore 01688 (hereinafter called “the Manager”) the other part.

WHEREAS:

  • The Company is engaged in IT business and requires a person with the necessary qualifications and experience to manage its business.
  • The Manager has the necessary qualifications and experience in the management of IT business.
  • The Company has agreed to employ the Manager and the Manager has agreed to serve the Company on the terms and conditions hereinafter appearing.

NOW IT IS HEREBYAGREED as follows:

  • The Company shall employ the Manager and the Manager shall serve the Company as manager of the Company’s IT business for a period of two years commencing on the 1st day of September, 2001, subject nevertheless to termination as hereinafter provided.
  • During the period of his employment, the Manager undertakes to perform the duties detailed in the schedule to this Agreement.
  • The Manager shall be paid a salary of $6,000 per month payable in arrears on the last day of every month.
  • This Agreement may be terminated by either party giving to other party three months’ notice in writing.

IN WITNESS WHEREOF both parties set their hands on the date herein mentioned.

The contract mentioned above is a very typical English contract. In this sample contract, the words hereinafter, whereas, hereby, whereof, herein are the archaic words. In contract, the typically used archaic words are compound adverbs formed usually by adverbs, such as here, there, or where, to which prepositions, such as after, at, by, from, in, of, to, under, upon or with etc., have been suffixed. Legal English has long been characterized by the archaic trait: constructions of the type hereunder, therein, and wherewith. These words were common in medieval English. Rather than saying under it or under that, a speaker of Middle English could say hereunder or thereunder. And instead of using with what or with which in questions, Middle English speakers would generally say wherewith. Although similar constructions still exist in Germanic language like Dutch and German, they have died out in English. At best, speakers of modem English might encounter them in passages from the King James1 Version of the Bible, or in the works of Shakespeare. As a result, people today have trouble understanding these phrases (Tiersma, 1999:94).

  • Archaic words beginning with here(here + prep.)

Such kind of words includes hereto, hereof, herein, hereinafter, hereinabove, hereunder etc.. Here means this. So hereto=io this (contract, agreement), hereof=of this (contract, agreement), hereinafter=latex in this (contract, agreement).

  • the Parties hereto agree as follows:
  • ..4BC Co., Ltd, a, corporate organized and existing under the laws of Singapore with its principal office at Singapore (hereinafter called “Party A”)
  • Archaic words beginning with there(there + )

Such kind of words includes thereto, thereon, therein, thereat etc.. There means that, which refers to a certain noun or noun phrase mentioned above. So thereto = to that, thereof = of that.

  • All disputes in connection with this contract or the execution thereof shall be settled by negotiation between both parties.

77ierec/= of that contract

  • The seller telegraph the Buyer immediately and deliver in 14 days to the Buyer a certificate of the occurrence issued by the government authorities or the Chamber of Commerce at the place where the accident occurs as evidence thereof:

Thereof = of the occurrence

  • Archaic words beginning with where(where + prep.)

Such kind of words includes whereby, wherein, whereat, whereof, wherefore, whereupon etc.. Where means which. So whereby=by which or by means of which, whereto-lo which.

This contract is made by and between the Buyer and the Seller whereby the Buyer agrees to buy; the Seller agrees to sell the following commodities in accordance to terms and conditions stipulated below.

Whereby= by which, by means of which.

  • Other archaic words in contracts

In addition, in contracts there are some other archaic words, such as witnesseth, the said etc..

Legal English has retained several morphological forms that have died out in ordinary speech. One of the archaic morphological forms is witnesseth. One can still encounter the verb form witnesseth in contracts of insurance: This policy witnesseth that….In fact, witnesseth is now often striped of any context and placed at the beginning of contracts, as a totemic signal that rough means, ctThis is a legal contract; the following are its terins.,? (Tiersma, 1999:87)

Another common and ancient legalism is the use of said as an article or demonstrative pronoun:

Lessee promises to pay a deposit. Said deposit shall accrue interest at a rate of five percent per annum.

Here, said could easily be replaced by the or this. Used in this way, it is clearly an oddity from the point of view of Standard English. Said may also be used as an adjective:

The said deposit is equally possible, and equally archaic.

Here is one more example:

In case no settlement can be reached, the case under dispute may then be submitted for arbitration to.. .in accordance with the Provisional Rules of Procedures promulgated by the said Arbitration Commission.

In this sentence, said is used as an adjective, which means the particular Arbitration Commission spoken of before.

A variant of said is aforesaid. It seems to mean exactly the same as said, because anything said was necessarily said before or “afore,” Thus, aforesaid simply takes up more space while constituting nothing to the meaning.

Such kind of words reflects the regular, solemn, conservative, rigid and authoritative style of contracts and the use of which can avoid the repetition and redundancy. One of the main justifications for continued use of antiquated vocabulary is that it is more precise than the modem equivalent (Tiersma, 1999:87). Using antiquated terminology bestows a sense of timelessness on the legal system, as something that has lasted through the centuries and is therefore deserving of great respect (Tiersma, 1999:97). And archaic language is considered more formal than everyday speech (Tiersma, 1999:95). Generally speaking, the appropriate use of archaisms in contracts can increase the solemnity and elegance of the language.

  • Synonyms

Two synonyms or two words with close meaning can be connected by and or or to complement each other. And in legal English this kind of use occurs very often. It is especially an outstanding characteristic of contracts, for by using it, ambiguity can be avoided or reduced. Look at the following sentences:

They declared the contract null and void.

The packing and wrapping expenses shall be borne by the buyer.

The purpose of this use is not only to respect the tradition, but also to seek accuracy and completion of meaning. As it has been mentioned by many linguists, legal English adheres much to tradition. There are many more such synonymous pairs: terms and conditions, settle claims and debts, import duty and tax, customs and usages, missing and disappeared person, willful and malicious injury, elderly and aged, able and willing, covenants and agreements, stipulations, reservation and covenants, libel and slander, goods and chattels, etc. The synonyms or near-synonyms in each phrase are connected by and and the second part is often used to reaffirm and complement the first part.

Sometimes, draftsmen may use some combinations of words with the word or to . • 1. ■ make the meaning more rigorous, accurate and complete. For example, alteration, modification or substitution; part or parts of at; defaced or altered; compensation or damages; loss, injury, or damage; use, misuse, or abuse; in contract or in tort; express or implied; altered or amended; repair or replacement. Among them, loss, injury, or damage; in contract or in tort; express or implied are frequently used formulas.

Some words, which are not synonyms or near-synonyms are also, used together for accuracy, for instance: breaking and entering, shall be or remain liable, etc. It is blameless to use commonly used reduplications of synonyms or near-synonyms to obey the habit of legal English, while it is necessary to avoid using superfluous words. The following are some common English words or phrases and the conesponding legal English phrases once used by some of the legal professionals.

In common English

annualannual and set aside
removeentirely and completely remove
willlast will and testament
documentwritten document
instrumentwritten instrument

 

From the above it can be seen that legal English is wordier than common English in wording. It is universally accepted that accuracy is the most important in legal English. So it is unnecessary to put undue stress to the use of reduplication of synonyms. In fact, since the 20th century, legal English has greatly progressed. Now very few people would use written document or written instrument, since they are too wordy.

  • Shall

According to Longman Dictionary of Contemporary English (1995), there are two main uses of the word shall. One is to express the simple future tense; the other is to express promise, purpose, suggestion, demand, custom etc.. As a legal English word, shall is invariably used to express what is to be the obligatory consequence of a legal decision, and not simply as a marker of future tense, which is its main function in other varieties. In all kinds of regulations shall is one of the most highly used words. It expresses order or standard of prohibition. This can be seen in the following examples:

  • In order to guarantee the performance of the contract and its appendices, both Party A and Party B shall provide each other the bank guarantees for the performance of the contract.
  • The quality and prices of the commodities to be exchanged between the importers and exporters in the two countries shall be acceptable to both sides and the prices shall be fixed in accordance with world market prices.
  • The purchaser shall not make available or otherwise disclose to any third party the proprietary software or any part thereof or any information relating thereto without the prior written consent of CAE.

 

  • The agreement shall be tacitly renewed from year to year provided that neither contracting Party notifies the other party in writing of its denunciation of the agreement six months before the date of expiry.
  • No unit suitable for woman to work shall/may reject any female applicants for employment.

Source: Cheng Zhongcheng, 1992:18

  • Syntactic Features of Contracts

After examining the characteristics on the lexical level, now let’s come to the syntactical level. In speech, we use sentences to express our meaning, therefore, to some extent, sentences are even more important than words, though words are’ the essential material to build sentences. There are some aspects only existing in sentence analysis but not in words, such as voice, tense and so on. You will find many unique features in the sentences of a contract such as very long sentences, complicated sentence structures, and so forth. Now we’ll study them one by one.

  • Conditional Adverbial Clauses

Contracts are written documents indicating the agreement between the parties thereto on their rights and obligations. But the carrying out of these rights and obligations usually presupposes various conditions. Only these conditions are met can the rights and obligations be carried out. So many conditional clauses are used in contracts. There are usually four kinds of conditional clauses:

  • Condition of supposition: clauses of this type generally begin with if, should, incase,or in the event of/that to express the supposed conditions on which each party to the contract can enjoy the rights or should perfonn the obligations. The emphasis here for these kinds of sentences is on the main clause.
  • Condition of prerequisite: such clauses are led by provided (that).Pragmatically, they express the specific condition whose existence is a precondition on which each party to a contract may carry out some activity. So the emphasis for these kinds of sentences is on the subordinate clauses which, in other words, are more important.
  • Condition of exception: such clauses are usually led by except, with the exception of, in the absence ofand  Pragmatically, they express that one party to a contract can be free from the restriction of some articles or clauses of the contract under some special conditions.
  • Condition of fact: clauses of this type are usually led by whereas, in considerationof and subject to to express some conditions that already exist.
    • Long Sentences

In terms of length, sentences can be long or short. Long sentences are well versed in conveying complicated ideas and are usually adopted in legal document. In contrast, short sentences are concise and can often speed up the rhythm of writing. Sometimes they can create an air of tension. Short sentences are usually found in literary works or sports to denote quick action or the change of rhythm between long sentences. Sentence length is usually regarded as one of the linguistic markers measuring the degree of formality: the greater the sentence length, the more formal the language. Contracts are composed of very long sentences. It is a characteristic legal habit. Many sentences have more than 50 words. The following sentence contains. 75 words.

Party B agrees that it shall maintain the strict confidentiality of the technology and other information transferred and disclosed by Party A hereunder and shall not, without prior consent of Party A, disclose the same to any one, except to their management and employees, and then only to the extent required for the proper and authorized use of the technology hereunder, unless the technology and other information are disclosed by Party A to the public.

However, short sentences also scatter among long sentences in contracts because variation is necessary in nearly all kinds of writing. Otherwise, the monotonous use of short sentences tends to bring about choppy effect; the overuse of long sentences will lead to the difficulty in reading. Whafs more, the sentence length doesn’t vary sharply. The mild variation in sentence length shows the drafters3 objective way of nanating. For example,

All disputes in connection with this contract or the execution thereof shall be settled by way of amicable negotiation. In case no settlement can be reached, it shall be submitted for arbitration to the Foreign Trade Arbitration Commission of China Council for the Promotion of International Trade in Beijing in accordance with the Provisional Rules and Procedures of the said commission. The award by the said commission shall be deemed as final and binding upon both parties.

Although sentences in contracts tend to be extremely long, they are usually self-contained units which convey all the sense that has to be conveyed at any • particular point and do not need to be linked closely either to what follows or to what precedes. Sometimes one sentence comprises the whole paragraph.

All in all, the predominance of long sentences is one distinctive feature of English contracts.

 

  • . Declarative Sentences

In terms of function, sentences can be classified into four groups:

  • Declarative sentences: to make a statement, to state a factual event.  ,
  • Interrogative sentences: to ask a question.
  • Imperative sentences: to give commands or instructions.
  • Exclamatory sentences: to show strong feelings towards something.

English contracts should be objective and show no personal emotions.

Declarative sentences are used to make statements, give explanation and make judgments. They take a predominant place in contracts. Exclamatory sentences are seldom found in English contracts for showing personal feelings and emphasizing atmosphere. Interrogative and imperative sentences are also seldom employed because there is no necessity for inquiry or commands.

  • Textual Features

We have mentioned that in modem stylistics, the study is not only from the lexical level and syntactic level, but also from textual level. Text is focused on intrinsic structural properties. The study from sentential level to intersentential level can promote our research to a higher level.

Cohesive devices are very important in textual analysis. The coherence of a text is carried out in the form of various cohesive devices: grammatical devices, lexical cohesion, logical connectors, etc. These devices can make the logic of reasoning 21

 

more clarified. In contracts, grammatical devices and lexical cohesion draw more attention because they function greatly.

Grammatical devices play an important part in organizing the information into a coherent text. Grammatical devices contain time relators, reference, substitution, ellipsis, tense, place relators and parallel structures. Simple present tense is commonly used in contracts to emphasize the validity, timelessness and generalization of terms and conditions in it. This tense indicates that the law is always speaking.

Lexical cohesion contributes to textual cohesion in two ways: lexical repetition and collocation. In this thesis, we mainly talk about lexical repetition because it enjoys a higher frequency in contracts. Lexical repetition means using the same expression to refer’ to the same concept, the same party, the same object, the same action, etc., through the whole text in contracts. We know that in other varieties, pronouns and synonyms are usually employed to refer to what has been mentioned before in order to avoid repetition, which is considered as redundancy and is unbearable to both writers and readers. However, in English contracts, there exists scarcity of pronouns because precision and exactness are being required in all legal documents and the use of pronouns may make the reference confusing and consequently undermine the clarity of contracts. Therefore, drafters of contracts use pronouns as few as possible in order to avoid ambiguity or misinterpretation. Pronouns are only used when there is no room for misinterpretation or confusion. Whafs more, synonyms are also avoided to take the place of the originally used words in order to avoid misinterpretation.

Because pronouns and synonyms are almost avoided, contract drafters usually employ the same expression to express the same idea time and time again even if repetition makes the texts redundant.

 

Chapter Four E-C Translation of Contracts

  • General Translation Theory
    • What is Translation?

Translation is an activity as old as language itself, for both insides and between languages “human communication equals translation,5(Steiner,1975:47). Intralingual translation, i.e., translation within the same language (such as translation between dialects and translation between ancient and modem forms of speech) has played an important part in the cultural accumulations of a nation. Interlingual translation, i.e., translation between different tongues, has on the other hand helped enrich the cultural heritages of the nation. In fact, both the East and the West owe their civilizations heavily to translators. For example, it is certainly true to say that in the Western world from the Roman Empire to the European Common Market international commerce and administration is made possible by the work of translators (Kelly, 1979:1).

Undeniably, the scientific study of translation has now been more and more regarded as a separate or independent discipline to engage academic interest in many parts of the world. For a scientific study, we should first and foremost make clear its definition. There have in history been innumerable explanations as to what translation is. But in nature, they mostly fall into one or another of these three models: conventional, literary, and linguistic.

The conventional model of translation has often been found in the language of the layman who claims that, for example, translation is “to express the meaning of one language by using another language” (the Chinese Cihai Dictionary, Compact 23

 

Edition: 1,940), or “to express the sense of a word, sentence, speech, book, poem, etc. in or into another language” (The Concise Oxford Dictionary, New Edition: 1,232), or “the replacement of textual material in one language (SL) by equivalent textual material in another language (TL)” (Catford, 1965:20). But such a definition has two weak points. Firstly, it only refers to the translation of verbal language, excluding other non-verbal systems of signs. Therefore, it is applicable to translation in the nanow sense, namely, interlingual translation. Secondly, ”expressing the sense or giving the meaning in another language“ is understood to mean that the meaning of the target language (TL) text is identical with that of the source language (SL) text. This seems too general a proposition.

The prevailing model of defining translation has been based on a literary angle of vision. The most striking feature of this model has been to regard translation as a form of literary recreation. It emphasizes the creative function of language, and requires that the translator possess an inborn gift for art and that the TL text produce the same kind of literary effect as the SL text. However, there have also been quite many literary translation theorists who do not see translation in the same light. In their view, only the original writer has the right to create while the translator has no right to do so but must follow the author faithfully.

The third model of defining translation, the linguistic model, is a less old model. The two typical definitions in the linguistic model have been provided by Catford and Barchudarov: (1) translation is “the replacement of textual material in one language by equivalent textual material in another language” (Catford, 1965:20); and (2) translation is “the change of the act of speech (i.e., discourse) from one language into another language without changing the content or meaning55 (Barchudarov, 1985:4).

  • Principles of Translation

Translation is an activity governed by rules. People come to recognize these rules through practice and derive from them general principles that in turn can both guide the work of translating and are applicable in testing or assessing the result of translating. In our way of understanding translation theories, principles and criteria of translation refer to essentially the same thing with principles being applied before the work is done and criteria after it is done. To produce an ideal piece of translation, the translator needs good principles to guide him during his work as well as good criteria for him to use for assessing the quality of his work. Therefore, all translation principles or criteria must have this double function. But translation principles or criteria cannot be formulated in isolation. They must be considered together with such contextual factors as the purpose of translation, the nature of the material to be translated and the category of the translation. This then leads on to the question of at what level or levels translation principles or criteria are formulated, and how many such principles or criteria are to be formulated.

A quick look at the history and development of translation soon reveals the variety of principles and criteria. For example, in the West, apart from the principles discussed by Tytler (1790:209) that: (1) the translation should give a complete transcript of the idea of the original work, (2) the style and manner of writing should be of the same character as that of the original, and (3) the translation should have all the ease of the original composition, a similar proposition of five “methods” had been formulated before Tytler by the French scholar Etienne Dolet (1540:95). There have been many other propositions such as those on “artistic equivalence55, ”textual equivalence”, u contextual equivalence”, “illusive equivalence”, “dynamic equivalence”, “functional equivalence”, and “equivalent receptor reaction”. This is not the time and place to dwell on these, as they may not be directly related to what we are discussing in this paper.

Why, then, are there so many principles and criteria? One important reason is that translation is such a complicated, multi-purposeful and multi-functional activity that it simply cannot be studied at one level or from one angle of vision. Any attempts at making any one simple principle or criterion the absolute guideline that must be obeyed at all times and under all circumstances are sure to fail. In our view, there are two general kinds of translation criteria under which there can be identified a number of concrete operation criteria. The first general criterion is the criterion of equivalence. Any type of translation, be it for literary, religious, scientific, or commercial purposes, must satisfy some measure of the criterion before it is called translation. There may be different kinds of “equivalence”, such as ”full equivalence”, “partial equivalence”, “equivalence in meaning”, and ^equivalence in function”. The second general criterion is a pragmatic type of criterion, by which is meant that one cannot talk about the criteria of translation without first talking about the whats, hows and whys of translation (Ricoeur, 1976:147). In other words, the various types of criteria on translational equivalence are all conditioned by particular purposes of translation, particular materials to be translated, particular types of TL readers, and so on.

  • Criteria of E-C Contract Translation

Having been clear with the general theories and criteria for translation, in light of the linguistic features of contracts, we can put forward the following two criteria that should be abided by in E-C contract translation.

  • Faithfulness and Accuracy

As contracts have become more specialized than before, with their contents tending to be more accurate and complete, this requires the translator to put Faithfulness and Accuracy as the first and the most important criterion in translating contracts. Special attention should be paid to some law terms and key words, because accuracy alone here is far from enough. Take the word offer as an example. To translate it as 提供 is quite right in general practices. But in the following context, it can only be translated as 要约或报盘.For example,

In order to start a concrete transaction between us, we take pleasure in making you a special offer, subject to our final confirmation.

为了我们双方具体地开展业务,我方很高兴向你方特别报盘,以我方最后确认 为准。

E-C translation of contracts is quite different from the translation of literary works in that it pays little attention to the literary grace and rhetorical value. Sometimes, for the purpose of avoiding ambiguity, the translation of some words should be kept consistent all the way through, although different Chinese characters of the same or similar connotation may be used depending on the context. This is especially so for technical terms and key words that are of fixed legal connotations. In translating these, we should understand thoroughly the gist of the original text and not distort nor misrepresent them, whether in form or in essence. Take the word exclusive as an example. The Chinese for exclusive territory is 独占区域,to show that the licenser must not award technology of the same content specified in the license to any other third party in the said territory; while the Chinese for exclusive contract is 专销合 , which means an agreement between the manufacturer and the retailer or distributor that prohibits the latter from carrying the product lines of other firms that are the rivals of the manufacturer. Another example is that while the Chinese for net income is 净收入,the Chinese for net profit is 纯利润.

The criterion of Faithfulness and Accuracy is not only a principle for translating contracts, but an attitude in translation. It requires the translators to set strict demands on themselves and to be conscientious and meticulous.

Besides what has been mentioned above, in practice, a large number of contracts are made in many other forms besides traditional ones, such as by telegram, telex, fax, EDI, or E-mail. To reduce the cost of transmission, abbreviations are often used. So translators should avoid using abbreviations that could be interpreted in a different way and thus cause misunderstanding. They should use those abbreviations, that are 1

universal and understandable to all interested parties. For example, such often used abbreviations as EEC for the European Economic Community, B/L for Bill of Lading are universally accepted. But for 通知,if the translator uses the telex formADK to mean advise, there is the danger of its being misinterpreted os advance. So when using abbreviations, the translator should make sure that they are readily understandable and acceptable to the recipient.

  • Expressiveness and Smoothness

By Expressiveness and Smoothness here we mean the translated version must be one in which the wording is so expressively and smoothly rendered that it is in conformity to the required contract language standards. Look at the following two examples:

  • By Irrevocable Letter of Credit available by Sellers’ documentary bill at sight to be valid for negotiation in China until 15 days after date of shipment, the Letter of Credit must reach the Sellers 30 days before the contracted month of shipment.

One translator gave the following Chinese version:

以不可取消的信用证,凭卖方即期付有单据的票据协商,有效期应为装运期15 天后在中国到期,,该信用证必须于合同规定的装运月份前30天到达卖方。

There are at least four places that are not properly translated in the original translation:

First, Irrevocable Letter of Credit refers to a Letter of Credit which cannot be revoked once it has been issued by the issuing bank at the Buyer’s request. Although the original translation can also express the same meaning, the generally accepted jargon is不可撤销的信用证.

Second, to translate documentary bill at sight as 即期付有单据的票据 is not clear in concept, because 票据 is a general name for many kinds of negotiable instruments. But, in contracts it mainly refers to a Bill of Exchange or Draft. So here it should be translated as 汇票and documentary bill means a bill the negotiation of which can only be done upon presentation of shipping documents(提示货运单据). The Chinese for it should be 跟单汇票.

Third, negotiation in international bill settlement refers to the giving of value for bills (drafts) or documents by the bank authorized to negotiate. The jargon for it is 议付instead of协商.

Fourth, until 15 days after date of shipment should be 装运期后的 15 .

Therefore, the appropriate translation after examination should be:

以不可撤销的信用证,凭卖方即期跟单汇票议付,有效期应为装运期后的15 天在中国到期。该信用证必须于合同规定的装运月份前30天到达卖方。

The original translated version is defective because the translator is very likely a layperson in terms of business jargons or, worse still, a layperson in foreign trade. E-C translation of contracts should not only conform to the contract language requirements, but also be smooth in wording. As the clauses of a contract are usually complicated, the translator should first have a thorough understanding of the consecution and the logical relations between clauses, and then pay attention to the structure and wording of the translation. The following example will further illustrate the point:

  • During the period from the date of effectiveness to the termination of the Contract, the two Parties shall hold a meeting every year.to discuss, problems in the execution of the Contract, to exchange views on technical development and improvement and lay a foundation for further technical cooperation. The aforesaid meeting shall be held in the two countries in turn. The contents and conclusion of such discussions shall be written in memorandum. The number of attendants of each party shall be no more than five persons. Each party shall bear its own expenses.

Original translation:

在合同生效之日起到合同终止之日的期间内,双方每年举行一次会议,讨论合 同履行中出现的问题,以及就技术发展与改善问题进行交换意见,这样可以为 进一步的技术合作打下一个基础。前面提及的会议,轮流在两国举行,讨论的 内容和结论将载入备忘录中,各方参加人员不超过5,各方承担自己的费用。

There is nothing difficult to understand or to cause misinterpretations in the translation. But it is a literal translation of the original so that it reads like a colloquial form of speech, which is not in line with the stylistic features of legal documents. It is better to translate the first sentence as 合同有效期内,which is clear and concise. The following may be a better rendition of the text:

本合同有效期间,双方应每年正式会晤一次,以便讨论本合同履行期间存在的 问题,以及就技术改进与创新问题进行交流,为加强双方的技术合作奠定基础。 双方的会晤应轮流在两国举行。讨论的内容应载入备忘录中,各方参加人员仅 限五人,费用自理。

The more important of the two criteria for contract translation is the Faithfulness and Accuracy principle. Contract documents are agreements reached between the interested parties after discussion, which will have direct influence on their rights and obligations. Any minor discrepancy in expression or interpretation will cause great consequences. Therefore, in case there is any conflict between the two criteria, the first one should be preferred.

  • Requirements for the Translator of Contracts

First of all, the translator of contracts should be very serious at his work. Contracts have legal force for both parties to abide by. Whafs more, a minute mistake in translation may lead to disastrous loss to a company or an individual. Therefore, the translator should be very serious at his translation work in order to avoid any disputes or loss.

Secondly, they must have a good command of both Chinese and English. Having a good command of both source language and target language is the prerequisite for both E-C and C-E translation. As to E-C translation, translators should master English quite well to make sure that they have a correct understanding of the original text. This is an indispensable part of the translation procedure. At the same time, translators5 proficiency in Chinese is also of the same importance in their rendition.

Furthermore, translators must be very familiar with the technical terms in law and in the contracted fields. Otherwise, they should look up the correct expressions and terms in the technical dictionaries or consult the corresponding experts.

Finally, they should keep practicing translating contracts. Practice makes perfect.

Because contracts have their distinct styles and formulas, if a translator keeps practicing, he’ll grasp the techniques of translating contracts which make translating work much easier.

  • E-C Translation of Words in Contracts ■ . ■ , ■ ‘ –
    • Archaic Words

In Chapter Three, it has been mentioned that in order to be formal and concise, archaic words are employed. In E-C translation, translators must demonstrate this characteristic in their renditions. Lefs look at the following examples:

  • The undersigned hereby certify that the goods to be supplied are made in USA.

下列签署人兹保证所供应之货系美国制造。

In this example, the archaic word hereby is rendered as 惹 which is an ancient Chinese expression. Meanwhile, the ancient Chinese expression 之 and 系 are also employed to help complement the formality of the whole sentence although there are no such archaic equivalents in the original.

Sometimes, in translating the archaic words in the original text, translators cannot find equivalent archaic expressions in Chinese or don’t have to translate these words. On such occasions, translators can utilize certain ancient Chinese expressions in appropriate places to demonstrate the formal style, even if archaic words are not used in the corresponding positions in the original. For example,

  • Rental income under operating leases is hereby credited to the profit and loss account on a straight line basis over the lease terms.

营业租约之租金收入与租约期内以直线法在损益账中计入。

In this example, the translator doesn’t render the meaning of the archaic word hereby, but use ancient Chinese 之 to demonstrate the formality and conciseness of the original sentence. Whafs more, 与and  also add a touch of formality to the sentence. ■ , ■

  • If any one or more of the provisions contained herein or any document executed in connection herewith shall be invalid or unenforceable in any respect under any applicable law, the validity and enforceability of the remaining provisions contained herein shall not in any way be affected thereby.

如果根据现行法律,本合同及与此有关文件中有一项或多项条款被视为无效或 不能履行,本合同其余条款的效力和履行将不因此受其影响。

In addition to separate words, contract drafters incline to use large numbers of archaic complex prepositional, adverbial and conjunctive phrases in place of simple words such as by virtue of (by), for the purpose of (for), in accordance with or in pursuance of instead of a simple preposition under, in the even that (if), prior to (before), subsequent to (after), etc. This shows a degree of formality that none of the constituents possesses in isolation, and tends to avoid ambiguity and improve clarity as well, thus is rather preferred in legislative writing. Since this point has been discussed by others in length, the author will not talk about it in details here.

In Chinese contracts, archaic words and expressions are also commonly used; in translation we can use them to achieve the interpersonal function as well:

  • All disputes arising from the execution of or in connection with the contract shall be settled through friendly consultation between both parties. In case no settlement can be reached, the disputes shall be submitted for arbitration.

所有由执行合同或执行合同有联系产生的争端将通过双方友好协商解决。万一 解决不了,这争端就将呈交仲裁机构。

We can find that the above translation conveys only the content of the sentence, but ■

not its authority because its expressions appear too informal. Thus we can improve it by using some archaic expression:

凡因执行合同所发生的或与本合同有关的一切争端,双方应通过友好协商解决。 如未能达成协议,则应付诸仲裁。

In this way, both content and authority of this sentence are conveyed. When we read this improved translation, we will be impressed by its solemnity and force, thus will take what it says serious. More examples are cited as follows:

  • Party A and its affiliates and successors shall, after prior notice to, and consultation with Party B, be permitted to disclose any such Confidential Information to the extent legally required or necessary for obtaining appropriate regulatory licenses or approvals.

甲方及其关联公司和承继人经事先通知乙方并与乙方协商后,应允许其仅按照 法律要求,或为获得有关管理部门的执照或批准而披露必须予以披露的任何该 等机密信息。

  • Neither party shall, except with respect to those of its employees with a need to know under this Agreement^ use or disclose to any person, firm or entity any Confidential Information of the other party without such other party’s express, prior written permission.

未经另一方事先明示的书面允许,任何一方均不得使用或向任何人,公司或实 体披露该另一方的任何机密信息,但根据本协议需要知晓的本方雇员除外。

In a word, archaisms often seem to add a touch of formality to the language in which they occur; its use in contracts emphasizes the seriousness and rigidity of legal language with all its advantages: the shortness and conciseness of the phonetic rhyme, the accuracy of the word meaning and the simplicity of the form. Therefore in E-C contract translation, we should be familiar with these archaic words and their uses as well.

  • Shall

This word, shall, which means  in Chinese, maybe the most often used word in a contract. As we know, a contract is a legal document that defines the rights and liabilities of the parties concerned. In defining the rights and liabilities, in Chinese,  is often used while in English shall is often used. Of course there are other words such as should or will also have a similar meaning. However, shall is more compulsive and emphasized and means a legal liability. If one fails to fulfill something, it will result in a legal enforcement and remedy. Look at the following examples:

  • The persons employed by Party A shall be responsible to the Manager of Party A.

甲方雇佣的一切人员都必须向甲方的经理负责。

  • Party A shall, at most favorable prices, supply Party B with spare parts of the leased equipment.

甲方应以最优惠的价格向乙方供应所租设备的备件。

  • This Contract shall become effective upon and from the date on which it is signed.

本合同于签字之日起开始生效。

  • The Seller shall have the right to increase the price of the goods specified in this contract at any time.

卖方有权随时提高本合同规定的货物侨格。

  • And/Or

And/Or are frequently used in contracts to ensure accuracy and to avoid any loophole.

  • No abbreviationsalterations and/or addition shall be made without the prior written consent of the Proprietors.

未经著作权所有者书面形式的事先许可,不得对著作作任何删节、修改和增加。

  • The Seller shall be liable for any damage and/or rust of the commodity and expenses incident thereto on account of improper packing and inadequately or improperly protective measures taken by the Sellers in regard to the packing.

因包装不妥和防护措施不当而导致商品损坏和生锈而发生的费用开支应由买方 负责。

  • E-C Translation of Sentences in Contracts
    • Conditional Adverbial Clauses
      • Conditions of Supposition

In English, the position for conditional clauses is very flexible. They can be placed at the beginning, in the middle or at the end of a sentence, depending on the appropriateness of the writing. Bearing in mind the different idiomatic ways of saying things, we should make appropriate adjustments in translation. Some examples are cited below:

  • If under this Contract the Buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the Seller, the Seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the Buyer that may be known to him.

In this sentence, the conditional clause is very long, and includes two levels of meaning that are connected by the conjunction and. What’s more, there is another time clause “either…” in the latter part. So in translation, we should preferably put the conditional clause at the beginning, i.e.,

若按本合同之规定应由买方决定货物的形状、尺寸或其它特征,但买方在双方 议定的时间内、或收到卖方的要求后的合理期限内,未能作出上述规定,则卖 方有权根据买方的已知要求自行规定。此情况不损害买方享有的任何其它权利。

  • The Buyer shall have the right to claim against the Seller for compensation of losses within 60 days after arrival of the goods at the port of destination, should the quality of the goods be found not in conformity with the specifications stipulated in this Contract after re-inspection by the China Entry-Exit Inspection and Quarantine Bureau. The Buyer shall have the right to claim against the Seller for compensation of short weight within 60 days after arrival of the goods at the port of destination, should the weight be found not in conformity with that stipulated in the Bill of Lading after re-inspection by the China Entry-Exit Inspection and Quarantine Bureau.

This article is made up of two sentences of a similar structure, i.e., a main clause followed by a conditional clause. Each of them has their own time adverbials. We had better put the conditional clauses at the beginning in translation, i.e.,

货物须经中国进出口商品检验检疫局检验,若发现质量与本合同之规定不符, 买方有权于货物抵达目的港之日起60天内向卖方提出索赔。若经中国进出口商 品检验检疫局复验发现货物重量与提单所示重量不符,买方有权于货物抵达目 的港之日起60天内向卖方提出短量索赔。

  • In case the Buyer fails to carry out any of the terms and conditions to this Contract with the Seller, the Seller shall have the right to terminate all or any part of this Contract with the Buyer or postpone shipment or stop any goods in transit and the Buyer shall in every such case be liable to the Seller for any losses, damage and expenses thereby incurred.

The structure of this sentence is very clear. We can put it into Chinese as:

倘若买方未能履行与卖方所订合同的任何条款,卖方有权终止与买方的全部或 部分合同,或延期交货,或截留运输中货物。在任何一种情况下,买方须负责 赔偿卖方由此发生的损失、损坏和相应的费用。

  • In the event that either Party A or Party B becomes aware of any infringement of patents, trade marks, copyrights, intellectual property of the Company or of any other matters, the party first becoming aware of the matter shall inform the Company of the same with all relevant information in its possession and both Parties shall consult with each other as to what action, if any, is to be taken.

This sentence is an article under the Clause of Confidentiality Agreement. We can put it into Chinese as follows:

如果甲方或者乙方得知任何对公司或其它任何事务的专利、商标、版权或知识 产权的侵害行为,首先知晓的一方应就这一情况及其所有相关信息通知公司; 而且双方还应互相协商以采取必要的行动。

  • Where the period of any Excusable Delay caused or introduced by the Buyer is at least one hundred and twenty days and the Parties have not agreed with a further thirty day period upon a revised basis for performing the obligations under this Agreement including the adjustment of the Total Purchasing Price, then the Seller may thereupon by written notice cancel this Agreement and such cancellation shall be deemed to have occurred pursuant to the provisions of Paragraphs (b) through (e) of Article 23 hereof (Termination and Cancellation of the Contract).

Adverbial clauses that are led by where and when most of the time also fall into this category to express some supposed condition. The translation can be:

如果买方引起的可谅解迟延最少达120,在其后的30天内,双方未能按照修 改的基础就执行本协议的义务达成协议时,卖方可就此书面通知买方撤销本协 汉。这种撤销应视为履行本协议第23b款至e款有关的条文(合同的终止与 撤销)。

  • When either party contributes his capital goods or industrial property as investment, Party A and Party B shall conclude a separate contract to be a part of this main Contact.

如果任何一方以实物或工业产权出资,甲、乙双方应另行订立合同,作为本主 合同的组成部分。

  • Condition of Prerequisite

We have mentioned that in Chinese, an adverbial clause is usually put at the beginning of a sentence with the main clause at the end. But with respect to clauses expressing a condition of prerequisite, we cannot put it the same way, because pragmatically speaking, this kind of clause is quite important in function. If in translation we use  or :如果 and put it at the beginning of a sentence, the difference from a clause expressing a condition of supposition will be weakened or even lost. Lefs look at some specific examples:

  • If any change is required regarding the terms and conditions, of this Agreement, then both parties shall negotiate in order to find a suitable solution, provided, however, that any change of this Agreement shall be subject to the approval by the governments of both parties.

This sentence contains two adverbial clauses, one is led by if to express a condition of supposition and the other one is led by provided to express a condition of prerequisite. As they have different pragmatic functions, they should be treated differently. The translation, therefore, will read:

若须对本协议的条款进行任何修改,双方须经协商妥善解决,但本协议的任何

修改须经协议双方政府的批准。

  • The Seller may, provided that the Buyer so agrees, retain the whole or part of the said incomplete equipment, fabricated or unfabricated parts, work in process, and. other material referred to in Paragraph (D) of this Article in which the amount to be paid by the Buyer shall be reduced by a sum equal to the value of the property so retained.

This adverbial clause is inserted between the subject and its predicate. So we can see its importance, which should be revealed in the translation:

在买方同意的条件下,卖方可以全部或部分地保留上述未完成的设备,己加工 好或未加工好的零件以及在制品和本条(D)款所述 的其他材料,这将因此使买方 少支付这部分货物的费用。

—— : ■ ■

  • In case one or both parties are not in a position to fulfill the relevant provisions mutually agreed upon due to force majeure, it should be made known to the other party in time. In such cases, it is permitted to postpone the implementation of this Agreement^ or to implement it partially, or not to implement it at all, or to exempt the party or parties involved partially or entirely from the liability for breach of agreement, provided a valid certificate is obtained as evidence thereof issued by some competent authorities.

The clause here is a necessary condition. It can be translated as a parallel part of the main clause:

倘若由人力不可抗拒的原因,本协议的一方成双方不能履行协议书的有关条款, 须及时向对方通报有关情况。在此情况下,本协议可以延期履行、部分履行或 不履行,或部分或全部免除有关协议方的违约责任,但须以有关合法权威部门

签发的有效证明为依据。

  • Condition of Exception

Adverbial clauses of this type always express some special conditions for one party or both parities to be free from the obligations or liabilities specified in some articles of a contract. Pragmatically, they are the complement or correction for articles. We can translate them as a parallel sentence to the main clause.

  • Unless otherwise agreed in writing, Party A shall retain all rights in all masks for Customer Products.

Here the clause led by unless expresses a special condition that disagrees with general operations. Unless otherwise is a formatted usage that often occurs in English contracts, which can be translated as 另有者除夕卜..there are some other similar expressions as unless otherwise specified (stipulated), unless otherwise awarded, etc.. The translation for this sentence can be:

甲方将保留所有客户产品的模板的权利,另有书面协议者除外。

  • Except for personal injury caused by Party A‘s negligence, Party A’s cumulative liability under a Contract will not exceed the aggregate amount paid to Party A under that Contract, even if a term of that Contract fails of its essential purpose.

This is an article under the Clause of Limitation of Liability. Here the condition clause led by except for is to define the limits of the liability of Party A.

除非由于甲方的疏忽而造成人身伤害,甲方在合约下的责任累积额将不超过合 同项下应收款项的总额,即使合约中有一项条款未能实现最终目标。

  • In case the quality, or weight of the goods should be found not in conformity with those stipulated in this Contract after re-inspection by the China Commodity Inspection Bureau within 30 days after the arrival of the goods at the port of destination, the Buyers shall return the goods to or lodge claims against the Sellers for compensation of losses upon the strength of Inspection Certificate issued by the said Bureau, with the exception of those claims for insurance company or the carriers are liable.

In this article, there is a condition of supposition clause at the beginning to define the buyer’s rights to ask for claims under certain conditions. While in the end there is another condition of exception clause to confine the buyer’s rights. This kind of article often occurs in contracts and is likely to be formatted. In translation we would, as we have discussed before, put the first clause at the beginning and the second clause as a parallel sentence to. the main clause.

若货物抵达目的港后三十天内经中国商品检验局复验发现其品质或数量或重量 与本合同之规定不符,买方可凭中国商品检验局出具的检验报告向卖方提出索 ,属保险公司或船运公司的负责者除外。

  • With the exception of late delivery or non-delivery due to force majeure, in case the Seller fail to make delivery within the time as stipulated in this Contract, the Seller should indemnify the Buyer for all losses and expenses incurred to the latter directly attributable to late delivery or failure to make delivery of the goods in accordance with the terms of this Contract.

Here this condition of exception clause is at the beginning of the article for the purpose of emphasis. But pragmatically, it represents a turning in meaning with the main clause. And according to the customary sentence order in the Chinese language, the emphasis of meaning is on the latter part of a complex sentence. So we had better put it at the end as usual.

若卖方不能按合同规定的期限装运,须赔偿买方因拖延交货或不能按合同条件 交货所直接遭受的一切损失和因此而产生的全部费用,由不可抗力所导致的延 期交货或不能交货除外。

  • Condition of Fact

Adverbial clauses expressing a condition of fact are narrative in nature. It is a description of a fact to express the purpose, intention, or reason of the parties concerned in formulating the articles. Let’s discuss the following examples:

  • Whereas the Licensor possesses know-how for the designing, manufacturing, installing and marketing of the goods;

—Whereas the Licensor has the right and desires to transfer the above-signed know-how to the Licensee;

—Whereas the Licensee desires to design, manufacture, sell and export the goods by using Licensor’s know-how.

Therefore, in consideration of the premises and the mutual conventions, the Licensee and the Licensor, through consultation, agree to enter into this Contract under the terms and conditions set forth as follows:

Whereas is a conjunction, which means, taking into consideration the fact that. Adverbial clauses beginning with whereas are often used in technology trade contracts to illustrate the background, purpose or intention of the parties in signing the contract, and to make clear that the contract is signed on the basis of mutual benefit. The legal significance of such clauses is that it can define the legality of transferring technologies of the parties concerned so that when disputes occur, they can be the basis for the court or arbitration bodies to explain the contract. Whereas clauses are often put at the latter part of the preamble as transitions to the body of the contract. The translation of the above example will read like this:

鉴于许可方拥有产品专有技术的所有权,有权设计、生产、安装以及进行销 售;

鉴于许可方有权且愿意将以上技术转让给受让方;

鉴于受让方愿意使用许可方的专有技术进行设计、生产、销售以及出口该产

因此,根据以上情况及双方的意愿,经受让方与许可方协商,达成如下合同条

 

 

  • In consideration of the payments to be Supplier as herein mentioned, the Supplier here covenants with Purchaser to provide the Goods and Services and to remedy defects therein in conformity in all respects with the Provisions in this Contract.

In contracts, conditional clauses led by in consideration of mainly express the conformity of rights and obligations, i.ei5 one party shall fulfill some obligations under the premise that the other party shall fulfill or has fulfilled some obligations. We can therefore translate the above as:

鉴于买方按合同规定付款给供方,供方保证向买方提供货物、服务和弥补缺陷, 并保证货物和服务完全符合合同规定。

  • Subject to the terms to this Agreement, the Producer agrees to be bound by the terms to the following marketing agreement.

. ■

In contracts, the basic meaning of subject to is depending on…as a condition. There is no fixed translation for it because its usage is very flexible. So we should translate the clause according to specific context and use the words that are suitable to contract language. The translation for it will be:

在本协议的条件下,制造商同意接受下列销售协议各项条款的约束。

  • In accordance with the international customary standards, the warranty period for the equipment delivered shall be eight (8) months after the completion of the. acceptance inspection at Party A.

Here the clause led by in accordance with is to express the condition that is usually taken as a standard for similar activities.

根据国际惯例标准,对已发送设备的担保期应为甲方对货物的接受检验完成后 8个月。

  • In the above instance, INVESTOR shall request Party A for payment of the actual costs of transportation.

Here are two phrases that are often used in contracts to express the condition that has already been discussed or listed above. It can be put into Chinese as follows:

在上述情况下,投资方将要求甲方支付所有实际交通费用。

  • Long Sentences

The translation of long sentences constitutes the most difficult and important part in the translation of English contracts. Because the lengthiness and complexity of sentences often result from the existence of a large number of adverbial and attributive elements, the key to translating long sentences in contracts lies in how to properly handle the complicated adverbial and attributive elements so as to make the Chinese rendition faithful, smooth and idiomatic.

Liu Miqing states in his book Style and Translation that there are six techniques in translating long sentences in English, namely embedding, cutting, reversing, splitting, inserting and recasting (Liu Miqing, 1985:157). We will discuss them one by one.

  • . lEmbedding

The first technique, embedding, means placing the modifiers (including phrases and clauses) before the word being modified. Therefore, in Chinese rendition, the modifiers are embedded in the sentences. The use of embedding makes the Chinese version compact and coherent. This technique is frequently used in translating attributive phrases and clauses. Two examples are given here:

l)Any party dissatisfied with the judgment may, within 15 days upon receipt of the said judgment, file an appeal to the next upper People’s Court.

如不服本判决的一方,可于接到判决之日起十五日内向上一级法院提起上诉。

2) Contractor shall bear all costs of removing the properties that it owns upon termination of this agreement.

承包商应承担协议终止时搬走其所有的财产的一切费用。

  • Cutting _– –

The technique of cutting is also employed in translating long English sentences into Chinese. This is the most frequently used technique in translating long and complex English sentences. By this means, we may sever a long English sentence and rearrange the parts in sense groups and then render them out in Chinese. Because Chinese sentences in contracts are usually made up of short and loose clauses without any conjunctions for linkage, translators should divide a long sentence into short but related Chinese clauses. Generally, the technique of cutting can be classified into three types: (1) cutting between the subject and predicate; (2) cutting at the juxtaposition or transition; and (3) cutting between the. main and subordinate clauses. Look at the following examples:

  • Any disputes, controversies or differences which may arise between the parties in connection with this contract may be referred to arbitration

有关本合同买卖双方之间所引起的任何纠纷,可付诸仲裁。

In this example, cutting is made between the subject and predicate.

  • In the event of any claim arising in respect of any shipment, notice of intention to claim should be given in writing to the Seller promptly after arrival of the goods at the port of discharge and opportunity must be given to the seller for investigation.

对所装货物如有索赔情况发生,则请求索赔的通知必须于货物抵达卸货港后即

刻以书面通知卖方,并且必须给卖方调查的机会。

Cutting is made at the juxtaposition in this example,

  • In case no amicable settlement can be reached between the two parties, the case under dispute shall be submitted to arbitration, which shall be held in the country where the defendant resides, or in a third country agreed by both parties.

如果双方不能友好协商解决,争议的案件应提交仲裁,仲裁应在被告所在国举 行或在双方同意的第三国举行。

In this example, cutting is made between the main clause and its subordinate clause which is a non-restrictive clause led by which.

  • All disputes, controversies or differences which may arise between the Parties hereto, out of or in relation to this Agreement and which the Board of Directors fails to settle through consultation, shall be submitted to arbitration which shall be conducted by the Foreign Trade Arbitration Commission of the China Council for the Promotion of International Trade in accordance with the Provisional Rules Procedure of Arbitration of the said commission, the decision of which shall be final and binding upon both parties.

有关本协议的一切分歧和争议,若董事会不能通过协商解决,则提交中国国际 贸易促进委员会对外贸易仲裁委员会,根据该会仲裁程序暂行规则进行仲裁。 该委员会的裁决是终局的,对双方均具有约束力。

This example is much more complex because it combines the three cutting methods together.

In all, cutting is much more frequently used than other techniques in E-C translation of long sentences in contracts. It makes translation work of long sentences much easier than they look.

Embedding and cutting are much more frequently used in translating English contracts than any other techniques. When a translator translates a long sentence, he • 1 . _

should think first how to render it with the two techniques. But sometimes these two techniques don’t work. Then the translator should turn to other techniques for help.

  • Reversing

Besides embedding and cutting, the technique of reversing is also employed in rendering long and complicated sentences. Reversing in translating long English sentences means adjusting the positions of the elements of a given sentence so as to make them conform to Chinese usage. By reversing, translators can reverse, completely or partially, the positions of certain elements in a long English sentence in accordance with the inherent sense groups. Let’s discuss the examples below:

  • Should the sellers fail to deliver the contracted goods or effect shipment in time by reason offeree majeure beyond their control, the time of shipment might be duly extended, or alternatively a part or whole of the contract might be cancelled without any liability attached to the sellers, but the sellers have to furnish the buyers with a certificate attesting such event(s).

由于不能控制的不可抗力的原因,如果卖方不能及时交付合同订售的货物或进 行装运,那么其装运时间可以适当延期,或者合同的一部分或全部可以予以撤 ,卖方不负任何责任,但卖方必须向买方提供证实此类事故的证明。

In this example, the phrase by reason of force majeure beyond their control is put at the end of the conditional clause led by should in its English original, but in its Chinese rendition, it is put at the beginning of the sentence. The reason is that in Chinese reason usually precedes result. Therefore, the translator reverses the original word order to make his rendition conform to the norm of Chinese.

  • The buyers shall, within three days after receipt of the contracts, sign and return one of them to the Sellers and keep the other.

签好后,买方保留一份,并在接到合同后三天内将另一份返还卖方。

In this example, the translator reverses the order of keep the other and return one of them to the sellers to make them conform to Chinese usage.

  • Splitting

Splitting is also employed in translating the long and complicated sentences in contracts. But it is used as few as possible because it may bring about confusion and misinterpretation. Splitting means taking certain elements out of a sentence and treating them separately. For example,

Should the sellers fail to make delivery on time as stipulated in the Contract with exception of Force Majeure as specified in Article 15, the Buyers may agree to postpone delivery on condition that the Sellers agree to pay a penalty at the rate of 1 % of the total invoice value of the goods involved to be deducted by the paying bank upon negotiation of the L/C.

除非出现第十五条规定的不可抗力,:否则若卖方未能于规定时间内交货,买方 可同意卖方推迟交货,条件为卖方同意支付罚金,罚金按商品发票总值的百分 之一计算,在信用证议付时由支付行扣除。

  • Inserting

Inserting means putting some additional punctuation marks such as dash, parenthesis, colon, etc., in a long sentence to make Chinese version both clear and smooth. This technique is also used in the translation of English contracts. Let’s look at the following two examples:

  • Should the seller fail to make delivery on time as stipulated in the Contract, with exception of Force Majeure causes specified in Clause 14 of this Contract, or causes by the Buyer in written form prior to such delay, the buyer shall agree to postpone the delivery on the conditions that the Seller shall be obliged to pay liquidated damages which shall be deducted by the paying bank from the payment under negotiation for such delay in delivery at the following rates.

卖方未依照合同约定按时交付的(本合同第十四条规定的不可抗力事件或延迟 交付前买方书面通知的原因除外),如卖方采取由其付款行在货款议付时直接扣 除的形式,按照下列比率支付由于延迟交付而应付的违约金的,买方应同意推 迟交付日期。

  • If the remitting bank draws the attention of the issuing bank to any discrepancies in the documents, or advises the issuing bank that the remitting bank has already made payments, and bears the responsibility for deferred payments, acceptance or negotiation with recourse or under the guarantee in respect of the discrepancies in question, the issuing bank shall not be thereby relieved from any of its obligations under any provisions of this Article.

如寄单行提请开证行注意单据中任何不符点或通知开证行它已以保留追索权或 根据保函进行了付款,承担迟期付款责任、承兑或议付时,开证行不能因此而

解除其根据本条文的任何义务。

  • Recasting

Recasting, also called synthesis, means that the translators, on the basis of full understanding of the original sentence, can flexibly adjust or reorganize the rendered sentence in line with the norms of Chinese without considering the original structure. It is considered the most difficult technique. Whafs more, it is liable to bring about misinterpretation and confusion. Therefore, it is only used when all the above-mentioned techniques fail to work well owing to the language structure disparity. Take the following sentence as an example,

The rights and liabilities of the parties hereto will bind and inure to the benefit of their successor, executors or administrators, provided, however that Party B may not assign or delegate this Agreement of any of its license, rights or duties under this agreement, whether by operation of law or otherwise, without the prior written consent of Party A except to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and assets to which this Agreement pertains, by merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligation under this Agreement.

协议双方的权利、责任对协议的继承人、执行人或管理人生效,对其有约束力。 但未经甲方事先书面同意,乙方不得运用法律或其他手段,擅自转让或指定或 采取其他方式转让、指定本协议规定的属于自己的任何许可权、权利或义务。 乙方将债权债务转让或指定给合并后一方的个人或企业时,或将债权债务转让 或指定给继承了与本协议相关的部分或实质上全部财产或经营的个人或企业而 该个人或企业以书面形式或依法履行合同义务的方式享有权利、履行责任时, 则不受此限。

4.6 Textual Level

It has been said that the phenomenon of lexical repetition exists in English contracts and pronouns are almost avoided in order to avoid misinterpretation and confusion. What’s more, a word5s synonym is also avoided to use in the following part to express the similar idea, hi Chinese rendition, the translators should also keep the characteristics of seriousness and consistency of English contracts. For instance,

In the event of any claim arising in respect of any shipment, notice of intention to claim should be given in writing to the Seller promptly after arrival of the goods at the port of discharge and opportunity must be given to the seller for investigation.

对所装货物若有索赔情况发生,则请求索赔的通知必须于货物抵达卸货港后即 刻以书面通知卖方,并且必须给卖方调查的机会。

In this example, claim and the seller appear twice respectively. But the translator doesn’t use the synonym 赔偿 to take the place of 索赔,and he doesn’t employ 他、它 or 他们 to take the place of 卖方 either.

In a word, if a translator employs a proper rendition of an English term or expression that is used several or many times in the original, he must adhere to using it in the following parts to avoid possible confusion and ambiguity.

 

Chapter Five Conclusion

As a sub-variety of legal language, English contracts have their distinctive stylistic features. At lexical level, archaic words, formal words, and coordinate words are employed. The employment of these words makes the contracts formal, concise and precise. At syntactic level, conditional clauses, long and declarative sentences are used extensively. The long sentences are used to avoid the probability of confusion and misinterpretation. At textual level, it is found that simple present tense and lexical reiteration are used throughout a contract. The use of simple present tense demonstrates the validity of contracts. Lexical reiteration shows the seriousness and consistency of legal language. This usage will avoid the probable disputes and misinterpretation that may be caused by the use of synonyms and pronouns.

As to E-C translation of contracts, translators should bear in mind that their rendition should not only be faithful to the original texts5 meaning but also be faithful to its style. On the other hand, they should make their rendition smooth and conform to Chinese expressing habits and make Chinese readers have a similar response as that of the original readers. What’s more, literal translation is preferred in translating contracts.

Therefore, to the stylistic features demonstrated in English contracts, a wide range of translation techniques are employed. At lexical level, many ancient Chinese words are employed to show the characteristic of archaic words used in English contracts. As to the translation of synonyms, one word or expression is prefened in Chinese rendition because of Chinese expressing habits in contracts. At. syntactic level, the translation of long sentences constitutes the most difficult point in the translation practice of English contracts. Besides cutting, which is the most frequently used technique, embedding, reversing, splitting, inserting and recasting are also available 55

 

in E-C translation practice of contracts. These techniques are expected to do some help in writing and translating English contracts and they still need to be improved.

The major findings in this thesis are in the following:

  • There is close relationship between style and translation. Translators should consider the factor of style in their rendition. Therefore, in the translation practice of contracts, translators should take its stylistic features into consideration.
  • English contracts have their distinctive stylistic features. They are usually demonstrated at lexical, syntactic and textual levels. These distinctive stylistic features require special types of translation techniques.
  • E-C translation of contracts should follow these laws: the prerequisite and basic request is to make the meaning faithful to the original; the secondly most important thing but also the most difficult to achieve is to make the rendition read like a legal document, with the stylistic characteristics of the source language’s contracts; what’s more, the rendition should be smooth and adapt to the target language’s conventions.
  • As to E-C translation of contracts, translators should bear in mind that their rendition should not only be faithful to the original texfs meaning, but also be faithful to its style. On the other hand, they should make their rendition smooth and conform to Chinese expressing habits and make Chinese readers have a similar response as that of the original readers.
  • The translation strategies of literal translation and free translation are not alternatives. They are usually combined together in translation practice. But their proportion is different in different text types. As to E-C translation of contracts, literal translation is mainly adopted.

However, the study of this thesis is restricted to a qualitative, analysis, so the followings are some suggested fields for future studies:

  • This thesis only explores E-C translation techniques of contracts from a stylistic perspective. It is worth investigating them from other perspectives as well.
  • C-E translation techniques of contracts are excluded from this thesis. Because of the stylistic characteristics of Chinese contracts are quite different from that of English, it is an interesting area for further study.

Generally speaking, this pager is just a preliminary try that has yet to be proved by practice. Owing to the limitation of the author’s ability, there must be some improprieties in this paper, which need the readers* valuable comments. Thus any corrections, suggestions and even criticisms are sincerely welcome.

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