Contract English: Linguistic Features and Translation
作为本论文理论依托，当代中国及西方翻译界若干广为应用的理论成果在论 文中予以了简述，包括“信、达、雅”（严复）、“重神似不重形似”（傅雷）、“化 境”（钱钟书）、“动态对等”（奈达）、“交际翻译”（纽马克）等理论。
本论文试图评析这些译论在实践中的适用性：宏观上其为翻译实践铺陈必要 的理论基础，指导并影响翻译决策；然而对于词句精确性要求严格的合同翻译而 言，这些宏观理论缺乏微观操作性。有鉴于此，本论文试图提供一些微观实用的 翻译技巧以协助翻译实践。
本论文从词汇、词组及句法角度着手，详尽阐述英文合同语言特征。在词汇 层面涵盖古体词、正式词、专业术语、情态动词及词性分析；在词组层面涉及近 义词并置、副词词组、名词词组、介词词组；在句法层面囊括定语从句、状语从 句、长句和被动句。在此基础上，本论文探索了一些相应的翻译技巧，诸如省略 法、语序调整、词性转换、合并法、分译法等。此外，针对长句，在英汉句法对 比的基础上总结六条翻译方法：内嵌法、切分法、倒置法、拆分法、插入法、重 组法。
This thesis is a systematic study of English-Chinese (E-C) translation of English contracts on the basis of a detailed analysis on the linguistic features of English contracts, and with an aim to propose tangible and implementable translation solutions.
This paper presents a brief survey of the most commonly used translation models, including theories by Chinese scholars: Yan Fu’s 3-Character Model (faithfulness, expressiveness and elegance)^ Fu Lei 5s Similarity of Spirit Model and Qian Zhongshu’s Perfection Model, and by western scholars: Nida’s Dynamic Equivalence Model and Newmark’s Communicative Translation Model,
This paper also offers the author’s opinions and judgment as to the appropriateness and practicality of these models within the highly specialized and narrow-focused area of E-C translation of English contracts. The author finds these models to be appealing in a broad sense because they provide much grist for the cognitive mill and offer general guidelines in translation. However, at micro-level, these theories are too wide in scope and open to too many interpretations to be rigid and practical solutions in the field of E-C translation of English contracts. For practitioners in everyday practice inference making and spontaneous liberal interpretation are not a viable option to meet the rigorous exactitude required by contracts. Therefore this paper develops a set of sound and practicable micro-level E-C translation techniques of English contracts, which can be easily adopted by translation specialists so as to aid and boost translation productivity.
This study examines in detail the linguistic characteristics of English contracts including lexicon – adoption of archaic words, preference fbr formal words, prevalence of terminologies, model auxiliaries and word types; phrases — conjoined phrases, adverbial modifiers, nominal structures and prepositional phrases; syntax 一 attributive clauses, adverbial clauses, long sentences, passive sentences and corresponding translation techniques – deletion, word order adjustment, transformation of parts of speech and finally sentence combination and splitting. With respect to long sentences, six translation techniques 一 embedding, cutting, reversing, splitting, inserting and recasting are proposed on the basis of syntactic comparison between English and Chinese.
Conclusively, to obtain a sound E-C translation of English contracts, one must be aware that familiarity with the linguistic characteristics of English contracts and skillful applications of various translation techniques play a significant and vital role in translation.
KEY WORDS: E-C translation of English contracts, business English translation, translation techniques
- e Introduction 1
- o Lexical Features 11
- ree Frequently Used Phrase Types 23
- Conjoined phrases 24
- L Classifications of conjoined phrases 24
- Translation of conjoined phrases 25
- Adverbial modifiers 28
- The odd position of adverbial modifiers 28
- Strategies for rendering adverbial modifiers 29
- Nominal structure 32
- L The Composition of nominal phrases 32
- Translating pre-modifiers and post-modifiers 33
- Prepositional phrases 35
- Typical compound prepositional phrases 35
- Methods of translation 36
- ur Syntax 38
- ve Conclusion 49
Chapter One Introduction
- Introduction and background information
With its entry into the WTO, China has experienced double-digit growth annually in foreign trade, a massive influx of foreign direct investment (FDI) and an explosion of Sino-offshore joint-ventures (JV). Furthermore, English is universally accepted as the international language of business. All this means that the translation of English contracts is now playing an ever more important role in the business community within China and beyond.
Chinese government, lawyers, legal academics, businessmen, law students as well as translation practitioners are increasingly confronted with growing volumes of English contracts, resulting in the booming demand for contract translation. The translation industry in China currently generates sales of 21 billion Yuan or 2.53 billion US Dollars annually, and that number is expected to continue to grow dramatically in the foreseeable future.
Michael Porter’s 5-Forces Model of Industry Analysis (1980) does shed light on the translation industry and its future prospects. In a market economy like China’s, the government is a major consumer of translation services and as such has a keen interest in the field of translation. In light of translation as a business requiring much knowledge, labor and higher language competence and China’s obvious labor cost advantage, coupled with, years of English as second language training in the Chinese educational system, China has positioned itself to have a sustainable competitive advantage in this industry. Potential western competition has largely ignored this industry and will continue to do so in the near future, preferring instead to outsource these services to cheaper domestic practitioners.
Applying Michael Porter’s 5-Forces Industry Analysis Model (see diagram) we would rate this industry as highly attractive with minimal threat of new competition, excellent potential for abnormal earnings (at least in terms of the Chinese market) and above average growth prospects. Currently relatively few professional classifications dominate this industry, which include: translation specialists, bilingual lawyers and academics. Governments both domestic and foreign, international corporations and lawyers are both buyers and suppliers of translations services and represent the lion5 s share of the total business volume. Despite this, suppliers and buyers (except due to government regulation) have a relatively limited bargaining power, and, with the demand for translation services quickly outstripping the supply of qualified translators, which is expected to remain a fundamental characteristic of the industry. Once more buyers and the suppliers may be one and the same, depending on the circumstances, further dampening their bargaining power.
The required core-competencies of language proficiency, interpretation skills as well as a broad and deep knowledge base provide formidable barriers to entry of new competition. There is a moderate threat of competition from software solutions providers; however, this threat is at least partially offset by the early adoption and widespread use of these same software solutions by practitioners themselves. China presently has no less than 10 world-class domestic translation software companies, some of whom are already providing E-C software solutions for domestic markets. Likewise, bilingual lawyers could become formidable competitors in the future, but again this is highly unlikely, given lawyers will in all probability choose to use cost-effective outsourcing solutions instead of doing the work themselves.
About 300 million people across China are currently learning English as a foreign language. Yet most of them are low-level learners and hence not suited to become future translators. Wu Qidi, Vice Minister of Education, said, “We should come to realize that the country is still facing the severe shortage of top foreign language professionals, especially, translators and interpreters,J (Yan Zhen 2006). To meet this growing demand for professional translators, Fudan University has recently announced that it will launch a new and highly-controversial undergraduate degree program in translation in September 2006.
Translation is a highly demanding skill that only those people who speak English and Chinese fluently and have completed formal translation training are qualified to do it. Zou Weicheng has proposed that subject knowledge and social skills are a sine quo non for doing a good job as a translator (Zou Weicheng 2006). Expert translators and interpreters, by definition, must have three highly-honed acquired skills or core-competencies: language proficiency, interpretation skills and a broad and deep knowledge base in their field of specialization (Feng Chao 2006).
A Language proficiency – is a prerequisite skill: to become an expert translator, a candidate must first be functionally bilingual, which means that they must have the ability to communicate equally well in either language and to speak and/or write as well as a native speaker before moving on to develop their interpretation skills.
A Interpretation skills 一 are advanced translation skills acquired through years of formal education and practical work experience.
» Knowledge base – a translation practitioner chooses an area of expertise or specialization, and then develops an extensive vocabulary/terminology base uniquely identified with and tightly focused on their area of practice or their customers5 needs.
Contracts define and establish the rights and obligations of each party, more specifically in this thesis the rights and obligations of Chinese companies and their foreign partners in international trade, joint-ventures, transfer of technology and other business operations. With the ever-growing number of new contracts being entered into everyday, there is a corresponding rise in contractual disputes. This problem will be further exasperated by poor or sloppy translation. When the two parties to a contract reach an impasse and cannot come to a mutually satisfying resolution, or a negotiated settlement, they often turn to arbitration or litigation to settle their differences. In these cases the written contracts will serve as the basis for settling disputes between the contracting parties. As a consequence the risks and losses of badly translated contracts are immeasurable.
One-way to minimize, if not to eliminate, foreseeable disputes is to ensure trans-national contracts are transparent, enforceable, fair and equitable to parties concerned. This makes the role of the legal translators more critical to the smooth and seamless drafting of dual language contracts.
It is of the utmost importance to have English contracts translated by highly qualified and experienced translators. But fbr lack of industry-wide guiding principles and accepted standards of translation, and because of an ignorance of linguistic features of English contracts, many translators shrink at the daunting task. Consequently today, many completed translation jobs fail to meet the needs of customers.
This dissertation focuses on exploring the linguistic features of English contracts and offering practical translation techniques, which should helps legal translators and lawyers gain a better understanding of the writing protocols of English contracts, and provide them with fresh new insights on how to become more efficient and accurate translators.
- Literature review
Three schools of thoughts – Yan Fu’s 3-Character Model, Fu Lei’s Similarity of Spirit Model and Qian Zhongshu’s Perfection Model – are representative models of traditional translation theory in China. It is not at all surprising that western scholars are of secondary importance in the field of E-C translation, when compared to their Chinese counterparts, given that in the past western academics have concentrated their researches on translating English into a second language other than Chinese, and at the same time considering the fact that relatively few westerners can speak Chinese
In Yan Fu’s 3-Character Model, the translation criterion is 一 ”faithfulness, expressiveness and elegance （信、达、雅）First proposed more than a century ago it has influenced the field of Chinese translation ever since. This model is most effective when the three circles are congruent （please see diagram）, and least useful when the circles are loosely overlapping as shown in the diagram on the left. Widely accepted and followed by practitioners, this model is suitable for most E-C translations – especially at the macro-level; however, in the more specialized field of contract translation, this model tends to evolve into new application. In contract translation the first priority is to concentrate on remaining <<faithfuF, to the original documents; of secondary importance is the need to strive for similar “expressiveness” and of least importance is “elegance”. In other words, in E-C translation of English contracts the three circles are different sizes and concentric.
In the 1950s, Fu Lei introduced his Similarity of Spirit Model, which proposed that practitioners strive for “similarity in spirit rather than in form（重神似不重形似） This model has some practical applications in the specialized area of contract translation. English contracts feature long complex sentences made up of two or more clauses coupled together; while the complementary Chinese versions break down these long sentences into several shorter and simple sentences expressing essentially the same meanings. The “spirit“ is the same, yet the “fdrm” is different – form follows function.
Qian Zhongshu proposed ^Perfection Model (化境)’：which means that rendition should bear no signs of stiffiiess or unnaturalness caused by dissimilarities between the source language and the target language. Meanwhile, the style of the original should be sufficiently and appropriately reproduced in the target language. It is the opinion of this author that Qian’s model is not so much about perfection in the true sense of words, but rather equivalence – the same idea expressed eloquently by the way a native speaker would naturally say it. Meticulous translators should be in a constant search of an uiron-cladM contract – legally equivalent and equally enforceable in either language.
Unlike the traditional Chinese approaches to translation, western translation theories are generally represented by- Nida’s theory on Dynamic Equivalence and Newmark’s Communicative translation.
Nida’s Dynamic Equivalence Model proposed in 1964, is based upon the principle of equivalent effect (1964: 159). Dynamic Equivalence refers to translate the meaning of the original in such a way that the target language wording will trigger the same impact on target language audience as the original wording did upon source language audience. The message is preserved and the translation is faithful (1982:200). ^Translation consists of reproducing in the receptor language the closest natural equivalent of the source language message, first in terms of meaning and secondly in terms of style55 (1982:12).
Nida’s theory of Dynamic Equivalence Model is analogous to Qian’s Perfection Model, Nida’s translation model was quickly and widely embraced by many Chinese scholars, because the fact that this theory is applicable to the translation of literary works, especially Bible.
Dynamic Equivalence Model, ideally suited fbr the translation of Bible and stories, is to certain extent applicable to the translation of English Contracts, which pays great attention to legal equivalence or a “”matching eflect,\ However, it still miserably falls short of a perfect model fbr the translation of English contracts where precision and exactitude are of paramount importance.
Likewise, Newmark’s Communicative Translation Model, published in 1982, received similar widespread acceptance by traditional Chinese theorists and E-C translation practitioners in China. Similar to the traditional Chinese categorizations of literal and free translation, Communicative Translation Model tries to render the exact contextual meaning of the original in such a way that content and style are readily acceptable and comprehensible to the target audience (Newmark 1988:47).
With the blinding pace of economic development of China since Deng Xiaoping, China’s membership into the WTO and the effects of globalization mean the need fbr translation services has grown correspondingly. Also, more researches have emerged to study this field, introduced new translation techniques and built a more comprehensive knowledge base for practitioners to tap into.
During the past decade, researchers have mainly focused on the language features of English contacts. Yang Shoukang and Yi Zhixian (1996) maintain that since international business contracts stipulate the rights and obligations of signatory parties and are of legal effect, direct translation should be used so as to avoid ambiguity and optimize faithfulness.
Pan Qingyun (1997) summarizes the basic features of law language according to expression structure and writing style. The three elements of narration, explanation and argumentation are included in its expression stnicture. Accuracy, by definition, is a quintessential nature of law language, without it other complementary features 一 such as content, thoroughness and facility, are rendered obtuse. Other scholars, like Jiang Yu (1995) and Feng Xie (1998), have concluded that the sentences in legal documents are usually in the form of complete statements and sentences of declaration.
Ji Yiguang (1999) states in terms of semantics, that the language of law has the following features in style: terminology, archaic words, fbreignism, and use of synonyms in pairs. In a word, law language must be robust enough in content to withstand future judicial challenges and yet, at the same time, meet universally accepted standards and conventions fbr contract writing. Chen Zhongsheng (2000) argues that the language of science requires conciseness: it can similarly be argued that the language of law and contracts also needs brevity and succinctness.
Generally traditional Chinese translation theories and current western translation doctrines have given us some excellent insights into the nature of translation, and have furnished us with some brilliant “big picture55 guidelines, but much more is needed, especially at the micro-level. Despite what has become a rather comprehensive knowledge-base gleaned from pure academic researches and practical work experience, what is still lacking is a widely-accepted industry standard fbr translation, and some bona fide practical models and systematic frameworks that practitioners can easily follow in the process of everyday translation.
To date most translation theories fail to reach the target audience (practitioners) or to achieve the critical mass necessary to become the industry standard. In reality, every practitioner works independently of others and is accountable to no-one else but him/herself. The old adage – it is hard to break old habits – was never truer. Operating in a vacuum, translation specialists are likely to develop his or her own style and methodologies – one that works best fbr them. The real crux of the matter is that most translation models work wonderfully in theory, but in practice leave something to be desired.
If the translation industry is ever going to be taken seriously as a legitimate and vital service provider in the value chain, what is really needed are widely accepted industry standards and approved methods fbr performance measurement. Without it, the translation industry is extremely vulnerable to substitute or complementary services like the Internet or software solutions, or the target of costly and expensive litigation fbr errors and omissions caused by bad translation services.
Compared with other kinds of professional English, legal contract English has many distinct characteristics. Analyzed from the aspect of linguistic features, it always applies distinctive diction, grammar and logic devices to achieve formality in style. The version should be not only technically and culturally accurate, but also rendered with the smoothness and naturalness, acceptable to the target audience. In order to guarantee the optimum quality of all the legal translations, translators should have unlimited freedom to make idiomatic renditions in the genius of the target language4
This paper will narrowly focus on a detailed examination of the language features of English contracts and will propose some pragmatic and easily implemented translation solutions, as well as some best practices, to help overcome the challenges associated with E-C translation of English contracts.
- Objective of the study
The objectives of the study:
- To strengthen the breath and depth of my knowledge and understanding of the field of E-C translation as it relates to English contracts. And this thesis is written in partial fulfillment of the requirement for the degree of Master of Arts.
A To summarize the current body of literature, including the description and application of the most popular models and methods of E-C translation of English contracts, into one succinct document.
A To show how these translation models are applicable and relevant in the workplace today.
》To examine the language of English contracts; recommend and issue some “best practices“ translation solutions; develop a set of pragmatic and practicable guidelines for the translation of English contracts, which can be easily adopted and used by translation specialists; boost translation efficiency and help avoid the gist of messages being lost in translation.
A To raise the overall profile of E-C translators; arouse awareness among current practitioners, translation candidates and those considering a career in the field of translation.
- To cover future growth prospects in the industry, the surge in new job opportunities and richer financial benefits.
This thesis relies solely on secondary researches and draws on sources that include: sample contracts, academic articles published in periodicals and journals, a survey of the most widely accepted and used translation models, as well as books and articles on general translation theories and E-C translation of English contracts.
Chapter Two Lexical Features
The general stylistics is to analyze a texfs phonological, lexical and syntactical styles. Close examinations of English contracts reveal overall formality, lexical exactitude, syntactic complexity, and an observance of set patterns as major features of the class. These general characteristics decide that to achieve stylistic appropriateness in target texts, translators should explore specific translation teclmiques and principles on the basis of the linguistic features of English contracts.
Words are the building blocks of communication. The language of English contracts is dramatically different from daily English in terms of vocabulary and style. The lexicon of English contracts is characterized by legality, formality, clarity and exactitude. The subsequent module attempts to explore English contracts from the aspects of archaic words, formal words, terminologies, modal auxiliaries, and word types.
2.1. Archaic words
Contract English has long been characterized by frequent uses of archaic words. Legalese is a way of preserving a professional monopoly by locking up the trade secrets in the safe of an unknown tongue.
Contract English has long been featured by a prominent archaic trait: words composed by “here”, “there” and “where” followed by one or several propositions. In these words, “here” means “this”, “there” equals “that”，while “where” refers to “what” or “which”. For example:
|Archaic Words||Modern meaning||Archaic words||Modern meaning|
|Hereafter||After this||Thereafter||After that|
|Hereby||By means of this||Thereinafter||In that part of a contract|
|Hereof||Of this||Thereunder||Under that part of a contract|
|Hereby||By that means||Whereof||Of which|
|Hereinafter||Later in this contract||Whereby||By what; by which|
|Hereunder||Under this||Wherein||In what; in which|
The effective roles played by the archaic words in English contracts are obvious and include the following:
More precise and concise. The justification for continued use of archaic vocabulary is that it is more precise than its modem counterpart and is capable of lending a sense of dignity and solemnity to legal documents. For example:
The parties to the contract shall, in accordance with the principle of good faith, execute the rights and perform the obligations hereof （傅伟良 2002:42）.
Without “hereof*’, the contract is simply not defensible and is in danger of loopholes. The word “hereof’ leads to economy of expression since it replaces the longer phrase “of the contract“ in the example to modify and limit “rights and obligations”.
Maintaining formality. Another reason for the continued use of archaic vocabulary is the sense of authority and formality it conveys in English contracts. As Tiersma argues that “the use of antiquated terminology bestows a sense of timelessness on the legal system, deserving great respecf* （1999:97）.
In Chinese contracts, a similar phenomenon occurs to highlight their formal style. Ancient monosyllabic words prevail in classical Chinese and are more formal than dissyllabic compounds and polysyllabic words used in modem Chinese. Some classical ancient words are still retained in Chinese contracts, such as 亦、未、若、倘、 如、之、为、于、即、系、凡、均、兹、本、其、及、而、惟and概(刘宓庆 1985:562). These words are not only succinct but also manifest the solemnity of Chinese contracts.
It has been found in the previous analysis that both English and Chinese contracts use certain archaic words or expressions to render texts more solemn. Based on this similarity, in E-C translation, when no equivalent archaic expressions in Chinese can be found, either formal expressions can be used to render archaic words in source texts, or certain ancient Chinese expressions can be added in appropriate places to make Chinese renditions formal and concise, even if no archaic words are used in the corresponding positions in the original.
“Licensed Products*, means the devices and products described in Schedule 1 annexed hereto together with all improvement and modification fliereof or development with respect thereto.
In this example, “hereto”(“to this”) and “thereto” (“to that”) are respectively rendered as 本 and 与之， which strengthen the solemnity of the rendition. Meanwhile, other formal expressions, such as 系 and 及，which enjoy a high frequency in ancient Chinese writings, are added in the Chinese rendition, though there are no such archaic equivalents in the original.
In a word, in E-C translation of English contracts, the proper application of standardized traditional terms in Chinese renditions can ensure legally equivalent documents with concise and precise wording, which are more defensible and less subjected to judicial appeals while maintaining deeply steeped traditional formality.
22 Formal words
Called as literary words or learned words, formal words mainly appear in formal writings, such as theoretical works, formal addresses and legal documents. There exist in English some synonymous words but with different stylistic characteristics. Here is a table of frequently used formal words in English contracts in contrast with their colloquial counterparts.
|Informal Words||Formal Words|
Words in the right column exceed their colloquial counterparts in the left column, because they are more compatible with the greater solemnity demanded by English contracts. English contracts, like other offshoots of legal English, naturally gravitate towards formal dictions, thus lending a sense of formality to contract texts.
After the rights and obligations under a contract are terminated, the parties shall follow the principle of honesty and trustworthiness and the appropriate trading practice to perform the obligation of notification, assistance and confdentiality （李丽 2005:14）.
Because formal vocabulary contributes to increasing solemnity in English contracts, five formal words “terminate”, “principle”, “notification”, “assistance,“ and “confidentiality*’ are adopted in English rather than their colloquial counterparts “end”, “rule”, “notice”「help” and “secret5,.
Another feature of English contracts is their reliance on terms of Latin or Greek origins and many such words consist of three or more syllables. Though not revealing their foreign origins at first sight, words of Latin origin are quite formal, such as “confidential”, “insufficient”，”penalty^’, “stipulate” and “authorized”. Some lawyers advocate a trend in the west to simplify the language of English contracts by replacing
Latin words by plain English; however, the influence of age-old tradition cannot be changed overnight.
Like other fields, legal English boasts a whole glossary of standard vocabulary and wide applications, among which legal terms occupy a prominent position. Influenced by the solemnity of the profession, legal terms acquired the characteristics of preciseness, definiteness, fixed usage and poor connotation.
There are two kinds of legal terms in legal English: unique legal terms to express the concept of common core in law, and common words from daily English with specific legal meanings. The former class includes words like tort （侵权）and subrogation （代位权）.The latter refers to specialized words converted from common words to define particular legal notions. Words of this category have legal connotations very different from their ordinary meanings, which constitute another problematic feature of legal translations. Such words are termed as “legal homonyms” by Peter M. Tiersma （1999:111） in his new book Legal Language. The following
table is a list of common words in contrast with their unique legal meanings.
|Words||Ordinary Meanings Legal Meanings|
|1 Condemn||谴责 判刑、定罪|
|■■Ma Subject matter||主题 _揉的物|
（李丽 2005:15;朱天文 2001:42;李剑波 2003:16）
Failure to identify legal homonyms may result in false or distorted translation. The following examples show us what big differences incorrect translations might result in.
The contract is concluded in case of acceptance of the offer.
Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach.
Unacceptable translation: 一方违约所导致的损置_包括因其违约而使另一方遭受损失的 金额，含利润损失。
Acceptable translation: 一方违约所导致的损害赔偿金包括因其违约而使另一方遭受损 失的金额，含利润损失（Ibid.）。
The reason for the distorted versions lies in translating the legal terms as common words, resulting in vagueness and uncertainty in the Chinese versions. In the first example, both “offer” and “acceptance” are important legal terms in contracts, meaning respectively 要约 and 承诺 in Chinese. In the second example, udamages,） is different from the word “damage”. According to Merriam Webster Of Law, “damages“ refers the money awarded to a party in a civil suit as preparation for the loss or injury for which another is liable, namely,损害赔偿金,However, in daily English, “damage“ is only a common word, which refers to loss or harm resulting from the iiijury to person, property, or reputation, namely, 损害 or 损失 in Chinese.
In addition to legal terms in English contracts, many other terms can be caused by the subject matter, since a contract is heavily specialized and involves knowledge about law, trade, finance, tax, insurance, transportation, customs, commodity inspection and other aspects. For example:
|Transactional Terms Chinese Meaning Transactional Terms Chinese Meaning|
|Documentary L/C (letter of credit)||跟单信用证||Force Majeure||不可抗力|
|W. A. (with Average)||水险||Bid Security||投标保证金|
|Letter of Guarantee for advance Payment||预付款保函||T/T (telegraphic transfer)||电汇|
|FOB (free on board)||装运港船上交货||B/L (bill of lading)||提单|
(陈建平 2005:81;徐勤 2005:79)
Buyer issues LOI and Seller responds with FCO. Buyer signs and returns FCO with a BCL. The Seller provides POP when the L/C is in place.
In the foreign trade transaction, the buyer will firstly send a LOI (letter of intent, called as 要约引诱 in legal terms or 虚盘 in trade practice ). Then the seller may respond with a FCO (full corporate offer,完全要约 or 实盘).BCL represents Bank Comfort Letter, which refers to a letter from a bank stating that the buyer has been involved in the importation of substantial commodities for so many years and has maintained an account of good standing with them for some time, namely 银行保函. POP refers to a proof of product given from bank to bank, viz.委托行须向付款行出 具的结汇单证in Chinese.
Since the example above is full of transactional terms, any loopholes inadvertently caused by poor translation may enable the other party to avoid liability for failure to perform. Any translator must take pains to render the original as accurately and clearly as possible.
- Modal auxiliaries
Frederick Bowers (1989:30-31) classifies the illusionary forces of legislative provisions into:
(l)Imperative language —— ttshalF, imposes an obligation to do an act; (2)Facultative language —— “may5‘ confers a right, privilege or power;
(3)Prohibitive language ——“shall nof5 imposes an obligation to abstain from doing an act.
According to Bowers (1989), “shall”, “may” and “shall not” are the most common legal performative verbs and act with the illocutionary forces of obligation (“shall”), permission (“may”) and prohibition (“shall not”).
- Obligation: <tshalF,imposes an obligation to do an act
As a sub-set of verbs, modal auxiliary adds modality (such as the concepts of possibility, volition and insistence) to verb phrases. Among the thirteen model auxiliaries in English, “shall“ is among the most frequently used ones in legal documents, with the connotation: “to accomplish the purpose of the provision someone must act”(陈忠诚 1992:170). According to Longman Dictionary of Contemporary English, ^shalF* (formal or old-fashioned) is used in official documents to show a law, command, obligation and compulsion.
The word “shall“ in English contracts helps to convey what is to be the obligatory consequence of a legal decision rather than simply as a marker of future tense, and can thus be paraphrased as “have /has the obligation to”.
The L/C shall reach the seller 30 days before the shipment.
Acceptable version:信用证须在装船前3。天到达卖方(陈建平2000:27 )o
In this example, “shall“ denoting an obligation should be translated as “须”rather than ”将The acceptable version exceeds the wrong one by identifying “shall” as marker denoting obligations.
In legal documents, many verbal groups are of the type: “shaT’+verb or “shall”+be+past participle. Typical example would be the following:
Payment §hW be effected within seven days after receipt of the shipping documents stipulated under clause 10 of this contract.
With ttshalF, translated as 应（该/当）and 必须，the stipulations above are rendered explicitly and imperatively. However, Chinese expressions denoting obligations, compulsions and injunctions are not so precise, including 应，得，应（该/当）,（必）须, 理应and有…的义务.
- Permission: “may9‘ confers a right, privilege or power
Semantically speaking, “may” expresses the meaning of permission, benefit, right or privilege and is used to permit an action or to give someone discretionary rights to do an action. Its functional Chinese equivalent is 可以.The following example is a good case in point:
The Liquidation Committee may engage the services of accountants and lawyers registered in China fbr purpose of rendering advice to the Board.
清算委员会亘聘请在中国注册的会计师和律师任职并向董事会提出建议（胡庚申 2004:85 ）□
- Prohibition: “shall notnimposes an obligation to abstain from doing an act
Prohibition is not to perform a certain act and the frequently used modal verbs in English contracts include “may not”, “shall not”,”neither （no） …may5,.
Within the validity period of the technology transfer agreement, Party B shall provide the joint venture company with the improvement of the technology and the improved information and technological materials in time, and shall not charge separate fees.
In this example, party B is put in a position that requires him to fulfill certain obligations. uShall not” denotes compulsion and injunction, with 禁止 and 不得 as its Chinese counterparts.
- Word types and nominalizations
An alternative approach to translate complicated language of English contracts is to analyze word types. English words are categorized according to their syntactic functions and are organized into nine distinct classifications, otherwise known as parts of speech in English; namely, nouns, verbs, prepositions, pronouns, adjectives, adverbs, articles, conjunctions and interjections.
In terms of frequency of occurrences, nouns and verbs are most frequently used in English contracts followed by prepositions and articles. Verbs are also frequently used in English contracts, but their occurrences are second to that of nouns. Due to the authority and solemnity of such a special language register, adjectives, adverbs and conjunctions are selected from a limited range. Pronouns are rare and limited to “it” so as to avoid any possible random reference. It goes without saying that inteijections are contradictory to the authoritative and solemn style of contract and are thus avoided.
Nominalization, as a distinctive feature of English contracts, refers to a noun phrase whose headword is an abstract noun derived from another word class, usually a verb or an adjective. The following examples may shed some light on how such transformations are completed.
Nouns and Nominalization of Verbs
There are two reasons why nouns are so widespread in English contracts. First, John Joseph once stated “an advantage of this reification of process is that it makes them much easier to organize into an argument” (Joseph 1995:7). In English adjectives are plentiful and productive in comparison with adverbs, which facilitate to form an argumentation by transforming verbs into nouns. Moreover, nouns can qualify to modify nouns.
Second, frequent use of nouns and noun phrases is an important feature that helps to distinguish English legal documents because nouns and noun phrases are in conformity with the formal style required by English legal documents. The following example may illustrate the advantage of normalizations.
Unacceptable version: That the L/C complies with what is stipulated in the Contract is of vital importance.
Acceptable version: The compliance of the L/C with the stipulations of the Contract is of vital importance (寥瑛 莫在树 2005:147)
This case illustrates the satisfactory effect brought by nominalization. The acceptable version turns the long subject clause into a noun phrase by introducing the noun form of “comply5‘: “compliance”, which facilitates understanding and is in agreement of the solemnity of English contracts.
In tenns of its high frequency of application, transformation of parts of speech (also called conversion) is one of the most helpful and most efficient translation strategies. Newmark once said, “In translating the laws of a source-language country, the translator can not ‘bend’ the text towards the second reader” (Newmark 1982:11). Sometimes, words in source contracts, when necessary, might be rendered into words identical in meaning but different in parts of speech, with expressiveness as its ultimate goal. A conclusion may be drawn that translator does not have to hold to the original parts of speech in source texts and should have unlimited freedom to make an idiomatic translation in the genius of target language.
- Translating nouns into verbs
Comparison between English and Chinese shows that preference for nouns and verbs are the respective characteristics of English and Chinese contracts. In E-C translation, alternations from English nouns to Chinese verbs are sometimes necessary and preferred to bring force more concise and idiomatic renditions. The following examples may shed light on such transformation.
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 that any change of this agreement shall be subject to the approval by the government.
Unacceptable version：如本协议条款需要修改,双方应协商寻找合适解决方案,但对协 议的任何修改须受政府彻霍支配。
Acceptable version：如需对本协议条款进行修改,双方应协商解决,但对协议的任何修 改必需经政府批迤(许国新2002:62)。
Without conversion of parts of speech, the unacceptable version, though correct and faithful to the source text, doesn’t conform to Chinese custom, consequently undermining its readability and understandability Compared with the unacceptable rendition, awkward and unidiomatic in form, the acceptable version, smooth and idiomatic, is preferable in Chinese. In the acceptable version, the nouns ^promotion55, “change”, “solution”, and “approval“ in the English original text are converted to verbs “促进”修改”解决”and “批准”in the Chinese version, which facilitate easy reading and better understanding. It is the skillful changes of word functions and word orders that play a crucial role. Therefore, strict accordance with parts of speech of words in source text will help little but spoil its readability and understandability.
- Translating adjectives into verbs, adverbs or nouns
In E-C translation, besides the transformation from nouns to verbs, when necessary, adjectives may be converted into verbs, adverbs or nouns in Chinese renditions so as to convey contents as smoothly and clearly as possible. The examples below are illustrative of the point.
This contract shall be unconditionally cancelled if either export or import license is unobtainable by(date).
In this example, <<unobtainable^^ is rendered into Chinese verbs “未能开出”.
Due to the transformation of English nouns into Chinese verbs, the adjectives, which modify nouns in original texts, are accordingly transformed into adverbs to modify verbs in rendered versions.
The Joint Venture’s products to be sold in China may be handled by the Chinese Materials and Commercial Departments by means of agency or executive sales, or direct sale by the Joint Venture company.
合资公司内销产品可由中国物资部门和商业部门代销或包销,或由合资公司直接销售 （胡庚申 2004:334）.
Since “enfbrcement” and “sales“ have been respectively transformed into Chinese verbs ”执行”and “销售”，transformation from adjectives modifying English nouns to Chinese adverbs is necessary to produce a more concise and smooth rendition.
Some other adjectives are also transformed into Chinese nouns or other elements just fbr the sake of smoothness of the Chinese translation.
The supplier shall ensure that it is the lawful owner of the technology to be provided and that the technology provided is complete, accurate, eflfective and capable of attaining the technical targets specified in the contract.
供方应当保证自己是所提供的技术的合法拥有者，并且保证所提供的技术具有完整性、 准确性、有效性,能够达到合同规定的目的（黄巍2002:43 ）0
Chapter Three Frequently Used Phrase Types
Syntax refers to the rules for ordering and connecting words into sentence. A sound knowledge of the distinctive syntactic features of English contracts will surely facilitate translating process. A systematic description of syntactic features should include: phrase types, clause types, and sentence types.
An English phrase is composed of several words organized in a specific way with the key word at the beginning of the phrase. In comparison, Chinese phrases are not classified by their key words but rather by their inner structures or grammatical relationships between elements within the phrases （兰宾汉 2002:156-167）.
In E-C translation, conjoined phrases, adverbial phrases, noun phrases and prepositional phrases with their distinctive features deserve more detailed discussion. In the following section, the author outlines a series of distinctive phrase features, explores translation techniques and their applications in E-C translation of English contracts.
- Conjoined phrases
- Classifications of conjoined phrases
Conjoined phrases are another prominent feature in English contracts. Conjoined phrases consist of words linked by “and” or “or”，as in “residue and remainder55, ^provisions and stipulations55, <sduties and responsibilities55 and “losses and damages”.
An offer shall be null and void under any of the following circumstances （黄巍 2002:43）.
hi this example, the juxtaposition “null and void“ with a French origin is used instead of its simple equivalent “invalid”. This practice has been used since the Anglo-Saxon times. Under the early Anglo-Saxon influence, phrases are featured by the juxtaposition of two alliterative words with closely related meanings, such as nto have and to hold55. This doubling continues in Napoleonic law, resulting in old English paired with French equivalent （some of Latin origin）, since many people at the time would have been partially bilingual and would understand at least one of the terms, for example, ufit and proper5* (old English+French) and ^maintenance and upkeep” (French+English).
According to the inner relationship between their components, conjoined phrases fall into four categories.
- Synonym strings (coupled synonyms)
The parties hereto agree to keep secret and confidential all information finjiished and provided to them by the other party (寥瑛 莫在树 2005:135).
- Coordination of relevant words
Party A wishes to be ]e|gaged and discharged from the Agreement as from the Effective Date (Ibid.:135-136).
- Antonyms strings
Warranties, expressed or implied, must be construed as consistent with each other and as cumulative^ but if that construction is unreasonable, the intention of the parties determines which warranty is dominant (Ibid.:136).
- Set expressions
The Buyers agree to buy the Sellers agrees to sell the under-mentioned commodity in accordance with the terms and conditions stipulated below (Ibid.).
- Translation of conjoined phrases
Conjoined phrases are widespread in English contracts and can add weight to comprehensiveness of contracts, thus minimizing possible loopholes in English contracts. Moreover, mere use of such quaint phrases will add not only legal credibility and polish, but also highlight the drafting skills.
For coordination of relevant words with slight difference in meanings, an approach of discretion is preferred. Any irresponsible and arbitrary deletion can result in far-reaching effects even to the extent of endangering the fulfillment of contracts. Translators should find equivalent Chinese for each series of synonyms as much as possible. Phrases like “obligation and liability”, and ^interpretation and construction” should be interpreted by discretionary translation as 义务和责任 and 理解和解释 （陈建平 2005:81）.
All permits, taxes and other fees arising from the prosecution and execution of the project shall be solely bom by the Contractor.
Unacceptable translation:项目施工过工程中所产生的许可证费、税费及其他费用全部由 承包方负担。
Acceptable translation:项目执行、施工工程中所产生的许可证费、税费及其他费用均由 承包方负担（陈建平2005:81）-
The acceptable version in the example is more faithful to the original by defining the subtle shades of word meanings between ^prosecution55 and “execution”, two stages in an ongoing project. Thus, prudent interpretation requires that both lawyers and translators are cautious of such conjoined phrases made up of relevant words.
In English contracts, a word used purposelessly or needlessly is not merely a tedious imposition upon the time and attention of the reader, it creates a risk because every word in a contract is construed so as to bear a meaning if possible, A superfluous word is therefore a potential source of contention （Thornton 1987:50）. This observation justified the deletion of certain words in E-C translations of English contracts. As long as the substance remains unchanged, deletion is legitimate as a means of avoiding redundancy.
From this perspective, synonyms strings, conveying the same meaning, may be rendered into a single word or term in the target text for the sake of preciseness and brevity. Conjoined synonyms, like “null and void”， “terms and conditions55, ^provisions and stipulations” and “conditions and provisions” are justified to be rendered into无效、条款、规定and条件（陈建平2005:81）.
- Omitting unnecessary nouns
To avoid reference ambiguity, English contracts use many unnecessary nouns, which lead to prolixity. In E-C translation, some repeated nouns in the source contracts could be deleted based on the context.
The parties to a contract may agree that one party shall, when violating the contract, pay breach of contract damages.
- Omitting unnecessary articles
Articles in English are prevalent due to the fact that the determiner position in nearly every nominal group has to be filled for the purpose of being specific, while articles are less frequently used in Chinese than in English. Hence, in E-C translation of English contracts articles are frequently omitted in the Chinese version.
Articles in English fall into two categories: the indefinite article (“a” or “an”) and the definite one (“the”), and the translation of them varies accordingly. When denoting a class or an indefinite reference, the indefinite article is frequently omitted.
A listed company shall, pursuant to laws and administrative regulations, make public its financial and operational conditions periodically.
上市公司必须依照法律、行政法规的规定，定期公开其财务状况和经营情况(徐良霞李 海燕 2004:161)。
When preceding a noun with a defining attribute, the definite article is usually left out.
The listed company may, in accordance with the needs of operation, apply to the relevant company registration authorities for duplicates of its business license.
When translated into Chinese, articles are usually omitted except when the indefinite article intended to indicate the numeral “one” or “a certain55 (许建平 2003:52). When the concept of quantity needs to be stressed, it is advisable to render a indefinite article.
Party B agrees to provide Party A with a whole plant for manufacturing of standardized containers.
When referring something mentioned before, a definite article may be rendered into its Chinese equivalents: 此 or 该.
Instructions given by the Engineer shall be in writing. Provided that if^ for any reason, the Engineer considers it necessary to give the instruction orally, the Contractor shall comply with ttie instruction.
- Omitting unnecessary conjunctions
In Chinese, connections between sentences are more often implied than directly conveyed by conjunctions. Thus many conjunctions that are indispensable in English seem redundant in Chinese. Hence, in E-C translation, conjunctions are sometimes omitted.
- Adverbial modifiers
- The odd position of adverbial modiflers
Being robustly logical and precisely written, adverbial modifiers in English contracts contribute a lot to avoid any possible misinterpretations. For the clarification of the rights and obligations of contracting parties, contracts must indicate exactly under what condition, at what time, or in what manner contracting parties should undertake the obligations or rights. Semantically, adverbials may indicate time, place, manner, purpose, cause, result, condition, concession and accompanying circumstance (陈定安 1998:54).
Lawyers and legal drafters take advantage of the adverbial mobility to clarify meaning and avoid possible loopholes in English contracts. Parenthesis is a word(s), clause(s) or sentence(s) inserted into a clause as an added explanation. To achieve the ultimate goal of emphasis, precision and clarity, adverbials in English contracts are often inserted next to the word to be modified, even at the expense of syntactic continuity and elegance of writing. The unusual position of adverbial modifiers follows its own rules, which are classified into three types:
- Between the main verb and object
Commonly adverbials are seldom placed between a transitive verb and its object, especially a long adverbial. However, sentences in English contracts frequently adopt inversion, placing adverbial modifiers before objects, to add emphasis on adverbial modifiers and to avoid ambiguity.
To defend, with attorneys selected by and compensated by the company, any suit against the insured…
- Between the modal auxiliary and the verb
In contract English, the adverbial modifiers frequently appear between “shall” and the verb to avoid distortion or misunderstanding, fbr example:
The contractor shall, with due care and diligence, in accordance with the provisions of contract design (to the extent provided by the contract), execute and complete the works and remedy any defects therein.
(3)Following conjunctions before clauses.
The position of adverbial modifiers in subordinate clauses also abides by their own rules. An adverbial modifier in the subordinate clause comes immediately after the conjunction such as, “if*’, “when”, “in case”, and “in the event that” etc., but before the clause itself
If, for any reason beyond the reasonable control of the Consultants, it becomes necessary to replace any of the personnel, the Consultants shall forthwith provide as a replacement a person of equivalent or better qualifications.
- Strategies for rendering adverbial modifiers
English modifiers, consisting of adverbials and attributes, can either come before or behind the elements they modify, while in Chinese, modifiers are regularly placed before the elements to be modified. Overall, Chinese complex sentences with adverbial modifiers organize information in conformity to logical order: conditions precedes consequences, causes precedes effects, and purposes precedes actions, analysis precedes summary, and details precedes stresses (keystone)(张福林 1998: 59-62), However, English sentences, confined by grammar, arrange the information in accordance with the sequence of importance.
To avoid an unnatural word order and an obstacle to comprehension, translators are justified to adjust word order in the genius of their language and legal competence. (1) Adverbial modifiers of reason
The Seller shall not be responsible for the delay of shipment or non-delivery of the goods dug to Fotcc Majuug which might occur during the process of manufacturing or in the course of loading or transit.
凡在制造或装船运输过程中,因不可抗力致使卖方不能或推迟交货时，卖方不负责任(许 国新 2002:62)。
In this example, the former part “the Seller shall not be responsible forM is the consequence, while the latter part “due to Force M药cure …”is in fact the reason for the outcome. Natural word order in Chinese follows this rule: reason precedes result. By word order adjustment as in this example, though the sentence construction is different from that in the original text, it conveys the exact thought in English and sounds good in Chinese.
- Adverbial modifiers of time
The Buyer shall proceed to pay the price for the goods to the Seller by opening an irrevocable L/C for the ftill amount of USD 3ao0Q in fkvor of the Seller through a bank at export port within 30 days after the signing and coming into effect of this contract
With “…the Buyer shall proceed to pay the price to the Seller^^ as the main structure, this sentence includes an adverbial modifier of time (within 30 days after the signing and coming into effect of this contract) and one of manner (by opening an irrevocable L/C fbr the full amount of USD 30,000 in favor of the Seller through a bank at export port). In English, it is a common practice that an adverbial modifier of manner is placed before an adverbial modifier of time; while in Chinese, the reversed sequence is more desirable. In the Chinese version above, its relocation of adverbial of time preceding adverbial of manner the target text complies with Chinese practice.
Most English contracts lay emphasis on the specific time by when contracting parties must fulfill certain obligations or exert rights; therefore, the focus of a sentence is not the action itself but the specific time when a certain action should be executed. To highlight the timing, an adverbial modifier of time should be placed close to the keyword “须” denoting obligations and duties r as in the above example. (2) Adverbial modifiers of purpose
An adverbial modifier of purpose indicates activities or obligations that one party is to perform or undertake to achieve a certain aim, which is usually introduced by ”in order to,\ “so as to”, ufbr the purpose of： or “fbr the sake of\ In Chinese, an adverbial modifier of purpose is regularly introduced by 为了 ot 以便，which are respectively put at the beginning or end of a sentence.
- Adverbial modifiers of manner
An adverbial modifier of manner, usually in the form of adverbs or prepositional phrases, specifies particular ways to fulfill an obligation – which is of vital importance to contracting parties. In Chinese, an adverbial modifier of manner regularly precedes the verb, which is contrary to the English norm.
The equipment and material shall be carefully and properly packed in the best and stable condition according to the figures and characteristics of the equipment and materials.
设备及原料应依据其形状和特点以完善而牢固的方式精心妥当地包装(许国新 2002:61 )o
To comply with the Chinese norm, the complicated adverbial modifier of manner in this sentence is completely reversed to precede the modified verb.
If the Supplier, having been notified, fails to remedy the defects within a reasonable period, the Purchaser may proceed to take such remedial action as may be necessary, at the Supplier’s risk and expense and without prejudice to any other rights which the Purchaser may have against the Supplier under the Contract.
The complicated adverbial modifier of manner in this sentence consists of two prepositional phrases to modify “take remedial action”. It is so complex that it even includes an attributive clause. Rigid observance of the syntax of the source text will result in an unnatural word order and as an obstacle to the comprehension. The skillful division of this complicated sentence into two paralleled clauses simplifies sentence structure and facilitates comprehension. The word “其” substitutes “必要的修复措 施“and makes the rendition conciser The connective “且”is adopted to achieve coherence.
- Adverbial modifiers of condition
There are two main ways to indicate conditions, namely, adverbial modifiers and conditional clauses. Most adverbial modifiers are in the form of prepositional phrases led by “in case of*’ and “in the event of \ “under (the) circumstance(s) of \ uon (the) conditions of’, “under the provisions of 5,and occasionally by “subject to”.
In the case of carriage by sea or by more than one mode of transport including carriage by sea, banks will refuse a transport document, uplg的 specifically authorized in the credit.
33 Nominal structure
- The Composition of nominal phrases
Another distinctive feature of English contracts is the high frequency of complicated nominal phrases with a large number of pre-modifiers or post-modifiers. A noun phrase is usually in this form: determiner+ pre-modifier+head noun +post-modifier. Structurally a determiner is incorporated into the headword to specify and limit a noun. In terms of frequency, the definite article “the” is the most frequently used.
There is a marked preference for heavy modification. In English, it is acceptable to place the modifiers either before nouns to be modified or after them. Pre-modification by nouns is carefully used in legal documents and appear in case it is ‘”closely associated with the head as to be regarded as part of a compound noun”. In English contracts, pre-modifiers are less used and confined to certain short and simple words, such as “any”, “all” and “such”.
Compared with pre-modification there is a marked preference fbr post-modification in the nominal structures. The post-modifiers are more complicated and can be participles, clauses or prepositional phrases, which contribute to exactness and precision. Since precision and understandability take priority over elegance of writing, post-modifying elements are usually inserted at the necessary points.
Any person who sustained body iNury, caused by accident, while occupying the owned motor vehicle if such vehicle is used by and insured ….
The post-modifiers are all linked with one another, with each qualifying the foregoing modifier: the relative clause (“who sustained bodily injury95) that modifies “person“ has a past participle phrase (“caused by accident”)modifying “injury”, a while-clause (“while occupying the owned motor vehicle^^) modifying “caused” and an if-clause (“if such vehicle is used by and insured”) modifying the while clause.
- Translating pre-modifiers and post-modifiers
Translators should not feel bound to follow the construction of the source text, if the meaning of an article can be conveyed more clearly by reversing the word order, the transformation should be done, but with care. Translators are sometimes encouraged to use such transformations as a means of improving clarity or shifting emphasis. To illustrate this word order adjustment technique, a few examples are given below:
The total contract price mentioned above shall be fixed after the conclusion of this contract, (modifier after the noun) (adverbial modifier after the verb)
In E-C translation, the original post-modifier is usually put before the noun it modifies. Translators may transfer the post-modifier in English to the pre-modifier in the Chinese translation. Owing to its advantage of preciseness, a participle clause is preferable to a relative one, which is longer than a participle. Post-modification with a participle phrase can be transformed together with head noun into an endocentric Chinese phrase •的When referring to time, a participle is not necessarily translated into a Chinese endocentric phrase.
The prepositional post-modification led by “of’ is widespread in English contracts. Semantically, post-modified noun phrases bear two kinds of relationships: verb-object or subject-predicate relation (Quirk 1972:886-887), namely, subjective, such as the following phrases:
arrival of carrying vessel
obligation of the seller
account of the issuing bank
number of the contract
For the subjective post-modification of the uof-phraseM, translators can safely and easily put it into an endocentric Chinese phrase connected by “…的The above phrases can be accordingly rendered into:
And another type is objective phrase which is shown in the following examples:
change of this agreement
breach and cancellation of contract clause
delivery of the goods
implementation of the agreement
As for the objective “oRphrase”, when the head noun is a nominalization of a verb or adjective, the head noun and the 6of5 phrase can be transformed into a Chinese verb-object phrase rather than an endocentric phrase:
The advantage of this translation technique can be obviously demonstrated in rendering those multiple prepositional phrases, such as:
The payment to the seller of the total amount of any installment then remaining unpaid shall be postponed.
Acceptable translation:应推迟支付卖方任何一项尚未交纳的总款项(寥瑛 莫在树 2005:78 )0
Correct comprehension in the face of overflowing post-modifiers, as in the above example, becomes too demanding a task. Overabundant prepositions become barriers and may well hinder smooth reading, because they make modification relations at various levels bewildering and obscure. It would be unsatisfactory if a rendition rigidly sticks to a Chinese endocentric phrase consisting a word “… 的”.
- Prepositional phrases
- Typical compound prepositional phrases
Quirk et. al. (1972: 302) also identify a class of compound prepositions in the form of P-N-P (Preposition+Noun+Preposition= Compound Preposition) as being much more common in legal English than in other varieties of English. The following table lists some of these phrases:
Compound Prepositional Phrases
|Simple Counterparts||Complicated Prepositional Phrases|
|By||By virtue of|
|By means of|
|Under/according to||In line with|
|In agreement with|
|In conformity with|
|In light of|
|In accordance with|
|About/concerning||With/in respect to|
|With regard to|
|With reference to|
|To||With a view to|
|With the object to|
|Durlngfin||In pursuance of|
|In the course of|
|For||On account of|
|As a result of|
|In respect of|
|For the purpose of|
|If||In the event that|
Comparatively speaking, long prepositional phrases read more formally and powerfully than simple prepositions. Therefore, substitutions of complicated prepositional phrases for short prepositions contribute to a more formal style.
- Methods of translation
English prepositions, very rich and flexible in meaning, have a changing power of expression, which can connect single words together to make organic phrases and join phrases together to make interesting sentences. In specific contexts, three common solutions can be applied when translating prepositions.
- Conveying same meanings by verbs. Prepositions, or prepositional phrases, serving as adverbial modifiers in the original sentence are often transformed into Chinese verbs. With most prepositions borrowed from verbs, the Chinese equivalence of English prepositions might be verbs or verbal phrases. For instance:
The parties may conclude a contract through an agent in accordance with the law. 当事人可以黜代理人依法订立合同(黄巍2002： 43)。
In this case “through” is rendered into “委托”，which successfully increases comprehensibility and readability while following the source text as closely as possible.
The Lessor agrees to lease out a whole plant for acetic acid production with an annual production capacity of 150 tons to the Lessee together with a full set of operation and maintenance manuals for a period of five years.
Different solutions to prepositions in this example are adopted with the first “with” omitted, and the second rendered into the verb “提供
- Using proper Chinese equivalents
Upon execution of this agreement, the venturers shall each own the following interests in the venture.
Instead of using a preposition to render “upon” in the original, it resorts to the clause “一经‘1 By doing so, this rendition is rather brief and smooth. The ultimate goal of translation is to produce a rendition equivalent in meaning and effect to the source text. Basic transformations (changes in parts of speech or syntax) are permitted to ensure the clarity, brevity, and accuracy of renditions.
Chapter Four Syntax
Syntax refers to the study of sentence structure and grammatical relations between words and other units within a sentence. English contracts are characterized by syntactic complexity and flexibility. In this chapter, the distinctive syntactic features and corresponding translation techniques will be explored.
- Attributive clauses
A comparative study of English and Chinese attributive structures helps bring this disparity to light. In an English sentence an unlimited number of attributive clauses may follow the word being modified, while a Chinese sentence only allows a limited number of words preceding the word being modified (许 建平 2003:131). Consequently, there is no correspondence between the sentence structures and some efficient ways will be developed to tackle the problems in the translation of English attributive clauses.
In English contracts, attributive clauses are repeatedly used to define and modify nouns denoting obligations. Attributive clauses can be put into two categories: restrictive attributive clauses and non-restrictive attributive clauses. As to a restrictive attributive clause, it is so closely related to the core word (also called an antecedent) that without it the meaning of a complex sentence would be incomplete. Depending on the length of attributive clauses (both restrictive attributive clauses and non- restrictive attributive clauses), two approaches are available: namely, sentence combination and splitting. When an attributive clause is favorable or advantageous in length, the device of combination should be adopted and in Chinese versions “…的” structure is frequently embedded to precede core words as a marker of an attributive clause so as to render a compact version.
The seller shall not be responsible for delay in shipment or non-delivery of the goods due to Force Majeure, which has occurred during the manufacturing process or in the course of loading or in transit.
因在生产、装运或运输过程中发生的不可抗力事件，卖方对迟交货或未交货不负责任(胡 庚申 2004:346)。
When an attributive clause is lengthy and complicated, a reversed rendition (from post-modifier to pre-modifier) may sound verbose. For smooth reading and understanding, sentence splitting is preferential here to place an attributive clause after the main clause to conform to the Chinese usage. A non-restrictive clause holds a loose link with its antecedent and functions as a supplementary part. Therefore, the method of splitting is applied more frequently.
If within thirty days of the giving of such notice no successor Agent shall have been so appointed and accepted such appointment, the retiring Agent may appoint a successor Agent, which shall be a bank having a combined capital and surplus of at least USD 50,000,000, or the equivalent thereof in another currency, or an affiliate of such a bank.
如在作出上述通知的30天内，接替的代理行没有被指定或接受这种指定，则已卸任的 代理行可指定一个接替的代理行，该接替代理行的联合资本和盈余至少有5000万美元 或与其值相当的其他外币，或者是这家银行的附属机构(Ibid.;349).
Sentence splitting is justified in this case, since such transformation enhances clarity and readability. According to the contexts the core word may be either omitted or repeated (as in the above-cited example) to simplify sentence structure and ensure coherence.
- Adverbial clauses of condition
A contract is an agreement on the rights and obligations of the parties concerned, but the rights to be exercised and the obligations to be fulfilled are always conditional. This is the reason for the prevalence of conditional adverbials in English contracts. For instance:
IC, within a certain period as specified in this Chapter, the Buyer fails to send personnel to join in the said inspection work, the Seller shall inspect it independently.
In this clause of liability for breach of a contract, the sellers’ obligation to “inspect it independently,5 is based on the condition that “within a certain period as specified in this Chapter, the Buyer fails to send personnel to join in the said inspection work”.
42L Predominant occurrences of adverbial clauses of condition
Just as the structure of a legal text reflects the underlying process of a legal analysis, rules and provisions in legal documents must express the proper logical relationship in order to create the intended legal effects. George Coode, an English barrister, concluded the logical structures
- Cases: expressing the circumstance(s) or situation(s) in which a legal action is intended to take place.
- Conditions: specifying what must have been done before a legal action is performed.
- Legal subjects: the persons on whom the obligations are imposed or on whom the right, privilege, or power is conferred.
- Legal actions: the obligation itself or the right, privilege or power and all that the law brings about (Sarcevic 1997: 136).
when an applicant has passed the test, if he pays the fbe、 the minister shall (case) (condition) (legal subject)
grant him a license.
(legal action) (黄巍 2002:43).
Coode,s analysis sheds light on the predominant occurrence of the sentence pattern “If X, then Z shall be YJ or “If X, then Z shall do Y”. Because the great majority of legal sentences have an underlying logical structure, 4‘that a legal subject performs a legal action under certain conditions”, the “if clause is frequently used to introduce a condition or prerequisite of a legal action. Semantically, “If X” is an essential part and is most likely to be accommodated by an adverbial clause of condition.
The position of the conditional clause is not specifically specified and is very flexible; namely, at the beginning, in the middle or at the end of a sentence. Legal drafters utilize the mobility of adverbial clauses to clarify meaning and to improve understandability.
- Effective translation
In accordance with Xu Guoxin, there are four kinds of adverbial clauses of condition (许国新 2002:62).
- Condition of supposition: clauses of this kind lay emphasis on the main clause and are usually introduced by “if”should”, “in case”, or “in the event that“ to express a supposed condition.
Should for certain reasons the Buyers not be able to inform the Seller of the foregoing details 10 days prior to the arrival of the vessel at the port of loading or should the carrying vessel be advanced or delayed, the Buyer or their chartering agent shall advise the sellers immediately and make necessary arrangement.
益买方由于某种原因不能于装运轮抵达装运港十天前将上述详细情况通知卖方，或装运 轮提前或推迟抵达，买方或其运输代理人须立即通知卖方并做出必要的安排(许国新 2002:62) o
- Condition of prerequisite: with the subordinate clause as its focus, a clause of this type begins with “provided (that)“ indicating the specific precondition under which each contracting party may carry out some activity.
In such cases, the Buyer shall, if so requested, send a sample of the goods in question to the Sellers provided that the 网nphng is feasible.
In this case, the translation technique of combination is adopted to produce a concise and compact rendition.
- Condition of exception: such clauses are carried by “except”，“with the exception that”, “in the absence of\ and “unless”, indicating one contracting party can avoid restrictions of a contract under some special conditions. Condition of exception can also be introduced by the following devices.
Except as otherwise provided 另有约定者除外
Unless otherwise stipulated (specified/ stated/ provided/ agreed upon)—另有规定者除外(徐 良霞李海燕2004:112)。
- Condition of fact: clauses of this category are frequently led by “whereas”, “in the consideration of9and “subject to“ to express some existing conditions
Nonetheless, Zhang Fulin has argued that in Chinese legislative documents, u… 的structure is frequently used to specify a condition and acts as a marker of an adverbial clause, though it may be classified as a noun phrase and functions as a topic; i.e. the legal assumption. In Chinese the function of “…的”structure is equal to that of “if •…then..『structure in English and can also be translated into adverbial clauses introduce by “when, where, in case that, etc.”(张福临 1998:75-78). As analyzed in the previous parts, cases and conditions in English legislative sentences are frequently introduced by a subordinate clause. In contrast, premises in Chinese legislative sentences are usually expressed with a special noun phrase:”的-phrase”. It is worthy of note that the reverse can also be used in E-C translation.
In fact, the 的-phrase expressing the legal premise, as shown in the example below, is as popular in Chinese statute as “if’ and “where“ denoting conditions and cases in English statutes. An English legal condition in legal documents can be rendered into the Chinese ”的-phrase”, which may greatly improve the readability.
Should any part of the apparatus and equipment furnished by the Seller prove defective within the guaranteed period stated hereof, the Seller will repair or replace the defective part at the Seller’s expense.
卖方提供的仪器设备的任何零部件在上述保证期内证明有瑕疵的，卖方将对瑕疵产品 进行修理或调换(徐良霞 李海燕2004: 105)。
The ultimate of goal of contract translation is to produce a text with legal equivalence. Basic transformations (changes in syntax) are permitted to better convey the contents in the target language, thus increasing comprehensibility while following the source text as closely as possible. A rigid translation of a subordinate clause headed by 当•・・时《英 may harm readability.
43 Long and complicated sentences
English contracts prefer to arrange all the infbrmat沁n into the form of complex sentences capable of standing alone by means of an array of subordinate devices. This practice is widely observed and retained fbr the following reasons.
Due to the former lack of punctuation, traditionally, the entire text of a statute is fonnulated into one sentence. Moreover, legal documents used to be hand-written in one compact mass. The reason for unbroken lines from margin may be to leave no space for a fraudulent addition. In English contracts, sentences unusually runs through a whole paragraph and even a whole article or provision, in order to avoid unnecessary repetitions or confusing cross-references led by a series of short sentences.
Since there is a great disparity between English and Chinese sentence structures, translators should learn to tackle them discriminatingly. As fbr the concrete approaches adopted in the translation of a typical English sentence, six techniques are available in translating long sentences in English: embedding, cutting, reversing, splitting, inserting and recasting (许建平 2003:163-168;刘宓庆 1985:157).
Embedding necessitates post-modifiers (including phrases and clauses) to be converted into pre-modifiers, thus modifiers are embedded in Chinese sentences. As discussed previously, as long as transformed modifiers are not lengthy or complicated, this reversion can optimize a compact and concise version.
rrherefdre? the technique of embedding is frequently adopted in translating attributive, appositive clauses and adverbials of cause, condition, premise, etc.(许建 平 2003:163). This has been previously discussed in greater detail in the translation of nominal structures and adverbial modifiers.
In the technique called cutting, a long complicated sentence can be divided into several short connected clauses fbr smoothing sentence structure and reading. By means of cutting, we may sever a long English sentence, rearrange the parts in sense groups, and then translate them separately into Chinese （许建平 2003:164）. To be exact, the technique of cutting can be adopted under three occasions:（张磊 2001:43）.
A Between long subject and predicate
Party B’s failure to getjhg goods ready fbr loading in accoidance with the time of shipment as stipulated in the Contract has resulted in time on demurrage for the vessel sent by Party A for 48 hours.
乙方没有按合同规定及时把货办妥,致使甲方派去装货的船只滞期48小时（胡庚申 2004:245 ）0
- At juxtaposition or transition
Notice of particulars of shipment shall be sent to Buyer at such time and by such means that the said notice shall be received by Buyer within 7days after shipment.
- Between main and subordinate clauses
I£ within 7 days, the Contractor confirms in writing to the Engineer any oral instruction of the Engineer, and such confirmation is not contradicted in writing within 7 days by the Engineer, the oral instruction in question shall be deemed to be an instruction of the Engineer. 益承包人在7天之内，用书面形式确认工程师的口头指示，并且工程师在7天之内没有 用书面形式对该确认加以否认，则此项指示应视为工程师的指示（徐良霞李海燕2004： 81）。
In these examples, the translation technique of cutting is respectively affected between a complex subject and its predicate, at the transition, and at the conditional clause. The collocation of “若…贝example three, binds the two clauses more closely together, which better conveys the inter-clause relation, “并且”is added to emphasize another condition. There are many Chinese conjunction collocations like 虽然…但是，只有…才and如果…那么.
The technique of reversing enables translators to reverse, partly or completely, the sequence of a given sentence so as to conform to the inherent sense groups or Chinese usage. The technique, optional as it is, may be employed only when the adherence to the original word order may rouse confusion.
No salary shall be paid and charged against the operating expenses, provided that the commission or brokerage of the Second Party shall be paid and charged as a part of the operating expenses
The preceding main clause, as an obligatory result, is based on the condition defined in the subordinate clause. In order to comply with the Chinese convention, the word order in the rendition is readjusted in accordance with the logical order that condition precedes consequence.
The technique of splitting is to rip some awkward elements (clauses, phrases, or words) from a sentence and place them separately at the beginning or end of a sentence. This technique is usually adopted when both cutting and embedding fail to work in the long and complete sentence, specifically under three occasions: (1) splitting a single word; (2) splitting phrases; (3) splitting clauses (许建平 2003:164).
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 fbr which the insurance company or caEers are liable.
This sentence contains a condition of exception, indicating under some special conditions that the sellers can avoid claims from the buyers. The solution to this sentence is to convert the condition of exception into a paralleled clause at the end, which simplifies the sentence structure and achieves clarity.
Inserting means to add some punctuation marks such as dash, parenthesis, colon, etc., in long and complex sentences so as to simplify and smooth sentence structures.
The Seller hereby warrants that the goods meet the quality standard and are free from all defects.
Recasting, also called synthesis, refers to flexibly restructuring a rendition in accordance with Chinese norms, which is founded on the accurate comprehension of the original on translators5 part. In other words, translators should produce a text equal in meaning and effect to the source text, by presenting a complicated sentence in a digestible state and removing syntactic ambiguity. This method, the most difficult of all, is used only when all the above-mentioned techniques fail to work well due to language structure disparities.
In the Chinese version, if the translator rigidly follows the original English sentence structure, the Chinese version may sound awkward in subordinate structure, hence creating discontinuity in reading and understanding.
The Buyer shall pay the Seller US$350, 000 within 20 days after the Bank of China has received the fbllowing documents fi”om the Seller and found them in order, but not earlier than 12 (twelve) months after the date the Contract Plant 鱼书爱 _%_of the guaranteed capacity of the whole Contract Plant according to the guaranteed quality indices as per Annex VI to the Contract or 65 months after the date of signing the contract, whichever is earlier,
买方须于中国银行收到卖方下列单据，并经审核证实无误后的20天内向卖方支付350.000 美元，但此款项的支付不得早于合同工厂第一次达到附件VI所规定之质量保证指标的95 %以后的12个月,或本合同签字后的65个月,以早到的日期为准(许国新2002:61 )□
This sentence contains a rather complex adverbial modifier of time, which constitutes a barrier for readability and understandability. The part following the word “but” stipulates and restricts the time of payment and forms a transition in meaning. The Chinese rendition successfully transforms the complementary part after the word
“but” into a paralleled clause with the main verb “pay” converted into a subject rather than to rigidly adhere to the original sentence structure. The word “但” is used to highlight the exception and indicate the inter clause relations.
- Passive sentences
There are two voices in English- active and passive. Active voice is direct, concise and forceful. Compared to active voice, passive voice may leave uncertain who the doer is. Even when the doer is known, passive voice tends to deemphasize it (陈忠诚 1992:31-32). Passive voice is therefore used in English contracts when the doer is not known or the receiver of an action needs to be emphasized. This can be illustrated in the following example:
Upon the termination or dissolution of the partnership, the partnership will be promptly liquated, with all debts being paid first, prior to any distribution of the remaining fund.
In this example, the consequence of paying debts is of vital importance. It doesn’t matter who settles the debts, and therefore, the use of a passive voice makes sense here.
Since passive voice is used less frequently in Chinese than in English, in E-C translation passive sentences are often transformed into active sentence. The following are concrete methods of translating passive sentences in English contracts. (1) Passive structures remain unchanged. Generally, word orders of passive clauses or sentences are not altered or adjusted, as are the positions of the subjects in original texts.
The seller shall not be held responsible fbr the late delivery or non-delivery of the goods owing to generally recognized Force Majeure cause.
由于一方公认的不可抗拒的原因所造成迟延交货或不交货，卖方不负责任(胡庚申 2004:339) o
- Passive voice converted into active voice. For sentences emphasizing the doer of an action, we may transform the doer into the subject of a sentence or clause by means of a “by-phrase”.
All the payments shall be made in the U.S. Currency by the Buyer to the Seller by telegraphic transfer to the Seller’s designated account with the Bank of China, Beijing, China.
买方应以美元支付货款,并以电汇方式汇入卖方指定的在中国银行北京分行的帐户(胡 庚申 2004:336)。
- Passive structures converted into subjectless sentences. Passive sentences without doers can be transformed into subjectless clauses, with the subjects of the original clauses converted into objects.
In case the quality, quantity or weight of the goods is not found in conformity to those stipulated in this Contract, the Buyer shall return the goods to, or lodge claim against the Seller for compensation of loss.
- Translating passive voice in English into passive voice in Chinese. Not all passive voices in English are transformed into active voices in Chinese. In English, passive voices take the form of “be+verb+ed”, while in Chinese, passive voice is introduced by words like由、被、给、受、遭、所、经(许建平2003:91).
The term fbr technology transfer agreement is signed by Joint Venture Company and Party B, and it shall be approved by the approval authority.
- If there is an inclusive relationship between a subject and an adverbial modifier in a passive sentence, the adverbial modifier of the original may be rendered into the subject of the target sentence so as to achieve clarity, coherence and readability.
The production design, technology of manufacturing, means of testing, materials prescription standard of quality and training of personnel shall be stipulated in Chapter 4 in this contract. 本合同第四章规定了产品设计,制造工艺、测试方法、材料配方、质量标准以及人员培 训(Ibid.:337) Q
- Fixed translation versions. There are comparatively fixed translations for special
sentence patterns in the form of it is+past participle+that clause. For example:
It is mutually agreed that 双方同意
It is essentially stressed that 必须强调
It is strictly understood that 严格表明(Ibid.:340)o
Chapter Five Conclusion
After its milestone entry into the WTO, China has accelerated its integration into the economic globalization, which inevitably gives impetus to flourishing contracts translation. However, translation studies in China have mainly focused on literary translation. For decades, translation of legal documents has unfortunately been ignored and still remains underdeveloped to date, which undermines its indispensable significance in society.
Much to the translation practitioners9 pleasure, the status quo is now changing fbr the better. In recent years, awakened by the ever-increasing urgency, more and more translation theorists and practitioners are devoting themselves to this cause. They persistently explore translation techniques and accumulate considerable translation experience, hence the mushrooming ofbooks and articles in this field.
On the solid foundation of previous researches by many eminent scholars and translators, this thesis probes into the E-C translation of English contracts from stylistic perspectives, i.e. lexicon, phrase and syntax.
At a lexical level, terminology and auxiliaries should be tackled with meticulous care so as to ensure a faithful and idiomatic rendition of the original. At the syntactic level, owing to the stylistic discrepancy between English and Chinese contracts, some leeway is left for the creativity of translators. With a wide range of translation techniques available, such as deletion, transfbmiation of parts of speech, sentence division and word-order adjustment, a skillfully combined application of these translation techniques may help to tackle the recurring problems in E-C translation of contracts.
Contract translation poses a paramount challenge fbr translators, who must have, as a minimum, superior bilingual competence, proficient legal expertise, consistent scrutiny and a strong sense of conscientiousness. In a word, a model translator of legal documents should be multi-dimensionally qualified.