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Sep 6, 2011

Stating conditions

Over the course of the past year I've worked from time to time on a post on the importance of general terms and conditions for freelance translators as a tool for avoiding trouble or defining procedures for problem resolution. But the hurly burly of daily life and business has kept me from finishing that particular article as well as my reluctance to publish on the subject before I get around to translating my own T&Cs from German into English.

I do regret that. So many of the "problem" threads I read in public forum are matters where clearly stated terms and conditions might provide some guidance for a better resolution of a dispute. And today I got a little request for an opinion from a friend who might have been helped by such a document as well. In his case, he quoted a job to an end client for the translation of what he thought was a two-page PDF. The customer was some industrial client who requests translations in various languages on an occasional basis, some of which are in language combinations he outsources. The little job was outsourced, translated and delivered, presumably on time. Alles klar, as they say here. But not quite. There was a second page with quite a few more words. It was overlooked in the PDF. And the customer pointed out that this extra text should be translated at no additional cost, because a quotation had been accepted in the belief that it covered the entire document.

I don't know what the ultimate resolution of this will be for my friend; the costs involved are annoying, but not back-breaking if he ends up eating the charges for the second page. But I thought to myself "this is a case where terms and conditions should clearly reserve the right to amend quotations where serious errors are found". And of course he has no written terms and conditions for his business, even though he's been in this game more than twice as long as I have.

It's not enough just to have T&Cs, of course. To apply them to a business transaction, you must make them available, perhaps as an attachment to a quotation, or as I often do making them part of my e-mail signature block.

There are so many issues that come up routinely that can be dealt with this way. Rights to rework an order if deficiencies are found. Limitations of liability to the value of an order except in cases of malice or gross negligence. Interest on payment in arrears. Whatever is important to you and your business can and should be covered in your general terms of business.

But one thing I do not recommend. Often in T&Cs and contracts, I read some nonsense about a particular language version being "authoritative" and translations being for information purposes only. That's bullshit. It may work in some jurisdictions, but certainly not in all. And it is simply insulting. If you can't trust the quality of your contract translation, maybe it's time to stop shopping for language services from linguists with tails. Offering a customer binding terms they can understand (in a language they read well) is a matter of basic respect and in some places a precondition for having an enforceable contract.

2 comments:

  1. Adding a disclaimer to translations of documents that may have legal effect (contracts, T&Cs etc) is not simply insulting. It is a matter of liability and sound business practice.
    Source text documents of this type are usually drawn up by lawyers qualified in source jurisdiction. They are carefully drafted to reflect the current legal status quo in that country. When translating the document, the translator is providing translation services, not legal services.
    To the best of their knowledge and competence, the translator provides a translation solution that accurately reflects the content and meaning of the source text expressed in the legal terminology of the target country. It requires extensive cross-disciplinary competence in both languages, knowledge of the legal systems and terminology of both jurisdictions, and translation skills. Competent legal translators flag up conceptual gaps between the two legal systems and find a compromise expression in the target text.
    The resulting text produced by a competent legal translator or lawyer-linguist is not going to be the same product as a new set of T&Cs or contract that would be drawn up by a lawyer qualified in the target jurisdiction. The issue is judicial interpretation of language - how the particular combination of words chosen by the translator would be interpreted during a dispute process.
    The translator is not usually a qualified lawyer in the source jurisdiction. Therefore, the translator cannot accept liability for the legal effect of the translation in that source jurisdiction. The translator’s liability insurance does not cover the provision of legal services and the translator may even be in breach of local laws about qualification requirements for provision of legal services.
    A competent legal translator will express this in their T&Cs and will also flag each translation with a suitable disclaimer. This is not questioning the quality of the translation. Far from it. This professional approach generates a clear delineation of the contractual position between client and translator. A neat solution in the disclaimer is to suggest that the client has the translation checked over for legal effect by a source jurisdiction lawyer. This also neatly avoids the problem presented by so many clients who fail to specify the jurisdictions where they hope to use the translation, and raises client awareness about liability issues that they might not even have considered.
    legalandfinancialtranslations@yahoo.co.uk

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  2. @Anonymous: The insult here is to suggest to someone that they should bind himself to the content of a document he cannot understand. If you cannot offer a binding translation in a suitable language, you will have no enforceable contract in many cases. But worse than that in my mind, you are exhibiting a seriously bad attitude toward that customer.

    I'm not talking here about the proper translation of legal documents in general and potential conflicts between legal systems. I am talking about a translator's general terms and conditions that apply to every transaction, including cosmetic advertising brochures, cookbooks, wedding invitations and whatnot. It will deal with basic issues like deliveries, payments, complaints and remedies. These general terms can, of course, be extended or modified in specific instances, and I think there is an additional value in doing this, because in doing so and making reference at the same time to the general terms, one draws further attention to them.

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