October 13, 2019

Literalism in legal writing – a severe disability

By admin-emal-35 Views-No Comment

Many clients and translators think translation is just flipping words around, and as long as you just go word for word, there’s nothing you can do wrong. Right?

To illustrate, here’s a German severability clause found in many standard terms of business:

  • Sollten einzelne Bestimmungen dieses Vertrages unwirksam sein oder unwirksam werden, so wird hierdurch der übrige Inhalt dieses Vertrages nicht berührt.

This is as easy as German gets, but don’t think you can just translate this “literally” and play it safe. There is no translation without choices. Every translation includes choices, some are just better than others.

To demonstrate, here are some real English translations of this severability clause with my comments:

  1. Should individual terms of this contract be or become inoperative, this will not affect the remaining terms of this contract.
    • Reduction of “invalid or ineffective” to the legal term “inoperative.” Risky choice, but translator seems to have done research beyond a bilingual dictionary. Avoidance of “shall” and passive (remaining terms shall not be affected) shows good legal writing practice and ability to paraphrase. Used synonym without changing meaning (“remaining terms” instead of “remaining content”).
  1. If individual regulations of this contract, either in whole or in part, are or will be inefficacious, […] the remaining content of the agreement is not affected.
    • Simply grabbed the longest words (regulations, inefficiacious) hoping they might have a broad legal meaning. Literal translation of the passive “is not affected” (by what??) instead of changing to more natural active voice. Introduction of confusing synonyms (contract/agreement).

 

  1. If single rules of this contract should be ineffectively or lose the effectiveness, the effectiveness of the contract remains untouched as for the rest.
    • Basic word choice mistakes (should be ineffectively, single rules). Wordy literal translation of nominalized passive “effectiveness of contract remains untouched” instead of “contract remains effective.”

 

  1. In the event of individual provisions of this contract being or becoming ineffective, this shall not affect the validity of the contract as a whole.
    • Needlessly elegant synonym for “if” – and the dreaded “shall,” of course. (By the way, there is no equivalent for “shall” in German. We have only “is” or “will be.” “Shall” is always introduced by the translator.) Probably an educated native speaker with a proclivity for 19th century prose.

Note that good writing is not a question of being a native speaker or throwing big words. Like the last translator, Anglophone lawyers are feared for their stilted prose. Good writing – regardless of text type – starts with knowing what you are doing and ends with the readers knowing what they should do.

Now look at the below severability clause, one you’d find it in most American contracts. It’s much wordier than even the worst of the above translations. Like, if you just add all the words in the dictionary, there’s nothing that can happen:

  • If any term of this Agreement is to any extent invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms hereof shall remain in full force and effect. [Source]

Legalese is one convention for legal texts. It is not the only one and people in the profession are trying to simplify their language.

For many contracts in Germany, the severability clause may not even be necessary at all, since §306 of the German Civil Code already covers this case.

Of course choosing whether to include the clause is up to the drafter, not the translator, but knowing a little background can’t hurt. A “poor source” text is no excuse, but a chance to learn more about text type conventions.

In conclusion, there is no such thing as literal translation, just a bunch of more or less appropriate translation choices. Even “literal” translators make choices – for example introducing “shall” or “inefficacious” or retaining a passive to sound smart.

Translators, like other writers, like using random big words to appear as if they’d done a lot of research. Don’t be fooled. Thorough research makes us use fewer words with more confidence.

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