contracts

Translating English
language contracts
With their thickets of legalese, contracts can pose a the introductory clause (which names
the parties), and, more often than
daunting task for translators. Kenneth A. Adams, not, recitals, which provide
background information.
an authority on contract language, offers pointers Recitals are often preceded by the
centred heading WITNESSETH, with
or without underlining, a space

L egal prose has long been the butt

of jokes and the target of red-
faced invective. I’m generally not
when to laugh. More recently, while
working in the Geneva, Switzerland,
office of a US law firm, I was
between each letter, and other glam
embellishments. Such headings may
be picturesque, but they’re inane.
inclined to join in the fun – when you occasionally called on to translate Drafters seem to think that
encounter lousy prose at every turn, legal prose – always French-to- witnesseth is a command in the
it can seem beside the point to single English, thankfully, but that was imperative mood – perhaps
out one profession. taxing enough. The experience something akin to Hear ye! It is
But I am willing to dispassionately caused me to wonder how a actually in the third-person singular,
Kenneth A. Adams acknowledge that one category of translator would tackle the sort of and is the remnant of a longer
has practiced legal prose is particularly abject: legal contracts that I routinely wrestle with. phrase, such as This document
corporate law with drafting, which is a form of writing In the years since that posting, I’ve witnesseth that .... As a heading, it
major law firms in used in preparing legal instruments devoted plenty of time to exploring the makes no sense.
the United States that seek to regulate conduct. These intricacies of the language of I don’t bother giving recitals a
and Europe. He include statutes, regulations, and contracts. My focus isn’t which heading. But if you’re faced with
currently practices wills, but my experience is mainly provisions to include in a given translating a witnesseth heading, your
with the New York with contracts. contract, but instead how to express best option would be to pretend that
law firm Lehman When I’m called on to review a those provisions in clear and efficient it means ‘background’. (That word
& Eilen LLP and contract that is representative of prose. I thought that I’d take the is sometimes used instead of
is also an adjunct current drafting standards, my first opportunity in this article to explore, witnesseth as a recital heading.)
professor at Hofstra thought is a selfish one – a mild for an audience of translators, just a
University School aggravation that I should have to wade few of the many oddities of contract Recitals of consideration
of Law. He has yet again through the archaisms, prose. I’m an American lawyer, but my At the end of the recitals comes the
written widely on redundancies, turgidities, and other comments apply equally to contracts lead-in, which indicates that the
legal drafting. problems that clog the prose of the drafted in Commonwealth countries. parties are agreeing to that which
His website is average contract. But sporadically follows. In most contracts, the lead-in
www.adamsdrafting. my thoughts are for a different Words without meaning refers, in a ‘recital of consideration’,
com. constituency, those who have to I would imagine that the principal to the consideration for the promises
translate English-language contracts. problem facing a translator is that made by the parties to the contract.
This is in part the result of a many elements of a contract are Recitals of consideration can take
modest exposure to languages included not because of the meaning many forms, but here is a lead-in
during a childhood in various parts of they convey, but because they’ve containing a relatively full-blown
Europe and Africa. My siblings spent always been there and the drafter feels example: NOW, THEREFORE, in
their summer holidays as escort- that the contract somehow wouldn’t consideration of the premises and
interpreters for the US State look right without them. Since the the mutual covenants set forth herein
Department, and my sister Christine drafter incorporates those elements and for other good and valuable
is a conference interpreter. While my without considering their meaning, it consideration, the receipt and
French was too shaky for that sort of can be awkward for the translator to sufficiency of which are hereby
undertaking, it is proficient enough to attribute meaning to them. acknowledged, the parties hereto
give me a sense of the sometimes covenant and agree as follows.
awkward interface between Witnesseth In contract law, consideration
languages. When my sister is telling In any contract, the body of the means that which motivates a person
an interpreting war story, I can contract – that which the parties are to do something. A promise by
generally be counted on to know agreeing to – is preceded by the title, another to do something is one form
of consideration; money is another.
‘Drafters seem to think that witnesseth Consideration, or some substitute, is
required in order for an agreement
is a command in the imperative mood – to be enforceable. The ostensible
function of a recital of consideration
perhaps something akin to Hear ye!’ is to render enforceable a contract

ITI bulletin September-October 2004 17

 that would otherwise be held A clause or sentence in the body provision contains shall, it won’t
unenforceable due to lack of of the contract can serve one of a be binding. As a result, it is
consideration. In this respect, number of purposes. Each purpose commonplace to find shall used
however, the standard recital of requires its own category of inappropriately in the following
consideration is of no help, since the language, and each category contexts, among others:
case law shows that a recital cannot raises its own issues of usage. ■ to convey obligations imposed on
transform into valid consideration What distinguishes the categories someone other than the subject of
something that cannot be of contract language is the use of the sentence (the Closing shall be
consideration, and a false recital of verbs, and lawyers blur the distinctions held at Acme’s offices)
consideration cannot create through rampant overuse of shall. ■ to convey the rules underlying the
consideration where there was none. Shall is a modal auxiliary verb. Unlike contract, known as ‘policies’ (This
But the recital of consideration the other auxiliaries (be, do, have), the agreement shall be governed by
nonetheless survives. When revising modal auxiliaries (shall, will, must, can, New York law)
a form contract, practitioners gloss may) express modal meaning, such as ■ in conditional clauses and matrix
over the recital of consideration. possibility, volition, and obligation. Shall clauses (If Jones shall cease to be
They’re too busy with the daily was originally a full verb (like eat, walk, employed by Acme, Acme shall
demands of their practice to revisit and play) and used to convey have an option to purchase the
concepts last encountered early on in obligation or compulsion, but now it is Shares from Jones)
their contracts course at law school; used only as an auxiliary, as is the In such contexts, instead of
it’s good enough for them that the modal will, which originally carried the shall a drafter should, depending
recital of consideration has long been sense of volition. on the context, use must, will,
a standard feature. And they might Because obligations and or the present tense, or restructure
find it comforting: the incantatory intentions concern future conduct, the provision (for instance by using
quality reinforces the notion that the and because there is no true future the active voice instead of the
law is a murky thing not to be tackled tense in English, shall and will also passive voice).
without that shaman, your lawyer. So came to be used with future time. The significance of this for the
the recital of consideration is passed The result is that shall and will translator is that you need to be
down from contract to contract have each been used to express able to tell when shall is being used
without a second’s thought. modal meanings and to mark future to convey an obligation and when it
This explains why the recital of time. A rule arose to distinguish these is being used indiscriminately.
consideration has acquired, like two uses: to express future time, use
barnacles on a hulk, other ludicrous shall when in the first person and will Provisos
archaisms, notably the hectoring when in the second or third person, A traditional component of legal
NOW THEREFORE, the entirely and do the reverse to convey modal drafting is the proviso, which consists
obscure in consideration of the meanings. of a clause introduced by provided that
premises (meaning therefore), and This rule and its many exceptions and set off from the preceding clause
the verb and noun covenant, which have largely been abandoned; in by a comma or semicolon.
is presumably valued for its Old common usage shall is rarely used to In contracts, provisos are usually
Testament atmospherics. It also indicate future time and barely introduced with a semicolon and
explains the presence of outdated survives in its modal form. But in the provided, however, that, with provided
buzzwords of the law relating to stylised context of legal drafting, and however underlined for emphasis.
consideration, such as references to which essentially uses only the third In the case of a proviso that
sufficient or valuable consideration. person, shall continues to serve as immediately follows another proviso,
Instead of relying on a traditional the principal means of expressing the formula used is provided further,
recital of consideration, a drafter obligations, while will expresses however, that or something similar.
would be advised to simply state in future time. In this context, provided that is a
the lead-in that The parties therefore It is standard practice to indicate truncation of the ‘term of enactment’ it
agree as follows. Until such time as that Acme has a duty to perform a is provided that; into the 19th-century,
that practice catches on, translators given action by stating that Acme provided that was used to introduce
will be forced to tackle the recital of shall perform that action. This use of statutory language. But provided is
consideration. In so doing, they’ll be shall is consistent with the use of also a conjunction meaning if or on
forced to lavish more thought on the shall in standard English, and for condition that, as in ‘I’ll let you go to
recital of consideration than any various reasons it is superior to the the party, provided you take a taxi
lawyer does. alternatives, must and will. home.’ It may be that this everyday
The problem lies not with this use use of provided dulls modern drafters
Shall of shall, but rather with the use of to the fact that as currently used in
A less flagrant but more pervasive shall in other categories of contract contracts, provided that essentially
problem with contract prose language. It almost seems as if continues to serve its original function:
concerns the use of verbs. drafters feel that unless a contract it is used to introduce not only
conditions to the main clause, but also
‘What distinguishes the categories of contract limitations and exceptions to the main
clause, as well as new provisions that
language is the use of verbs, and lawyers blur the can be considered independently of
the main clause.
distinctions through rampant overuse of shall’ As a result, using provided that

18 ITI bulletin September-October 2004

 contracts

is an imprecise way to signal the

relationship between two adjoined
A MANUAL OF STYLE FOR CONTRACT DRAFTING
contract clauses. A more precise Kenneth Adams is the author of A
alternative is always available, Manual of Style for Contract Drafting
whether it be another conjunction (American Bar Association 2004). It
(such as except) or a semicolon, represents the first comprehensive
colon, or full stop. And sometimes it and accessible guide to drafting clear
is clearer to insert a phrase or other and effective contracts.
modifier somewhere in the body of The book was written from the
the main clause rather than tacking perspective of an American lawyer,
on a proviso. but it would be of use to a wider
But I imagine that for readership, because contracts drafted
the translator, the conservative in the US and contracts drafted in
approach would be to preserve the Commonwealth countries share the
inadequacies of the original prose same basic concepts and use
by simply using some stock phrase essentially the same language.
when translating provided that. Translators of legal drafting might find
Preserving the eccentric punctuation the sections describing the use of
and underlining might also help verbs in the different categories of
warn the reader that one is dealing contract language particularly helpful.
with legalese.
The book is available from the American
Synonym strings Bar Association. Purchasers in the United
Lawyers have long strung together States can buy it from the ABA’s website,
synonyms, and rare is the contract www.abanet.org. Purchasers elsewhere
that does not include strings of two, should call the ABA at (800) 285-2221 or
three, or more synonyms or near- email them at [email protected].
synonyms. Some synonym strings, Alternative purchasing channels are
such as right, title, and interest, have currently being arranged; for updates on
a long history. Others appear to be availability, visit www.adamsdrafting.com.
improvisations, such as the
requirement, in a share purchase
agreement, that Smith sell, convey,
assign, transfer, and deliver the construed lien sufficiently broadly to The prospects for change
shares to Jones. It is improvisations encompass the other terms and that Over the past 30 years or so, law
of this sort that suggest that while the parties were aware what lien was schools and law firms have
the synonym habit may have intended to cover. expended considerable efforts on
etymological or rhetorical origins, If a translator faced with a improving standards of legal writing.
it survives because it allows the synonym string were able to Until recently, no comparable efforts
drafter to finesse the often-awkward ascertain that the extra synonyms have been made toward improving
task of selecting the best word for a were tacked on not to enhance legal drafting. It may be that one
given provision. meaning but instead out of tradition reason for this is that whereas
Drafters would be better off or an excess of caution, the litigators are forced to write for an
replacing synonym strings with translator could conceivably elect to exacting audience – judges – a
a single word, unless nuances translate just one of the synonyms. contract is generally read only by the
of meaning indicate that there is But that would seem to involve more lawyers who drafted and negotiated
some benefit to using more than one editorial discretion than most it and, to varying degrees, their
of the words, using interest instead of translators would be comfortable clients. That does not represent a
right, title, and interest; using sell with; realistically, there would seem to critical audience.
instead of sell, convey, assign, be no alternative to translating each As a result, corporate lawyers
transfer, and deliver. of the synonyms. remain under the sway of that most
But a string may be necessary to But that presents problems of its powerful of illusions, the illusion that
make sure that a provision covers the own. For example, contracts often one writes – or rather, in this case,
universe of possibilities. For instance, contain a bloated governing-law drafts – well. They cling to tradition,
a securities purchase agreement provision along the following lines: This and many are liable to respond
might include a representation by the agreement shall in all respects be tetchily to suggestions that current
seller that the shares are free of any interpreted, construed, and governed usages are inadequate.
lien, community property interest, by and in accordance with the laws of Any change will come slowly.
equitable interest, option, pledge, the State of New York. Depending on Making available to the corporate bar
security interest, or right of first refusal, the language involved, a translator a comprehensive set of guidelines for
or some similar formulation. While this might be at a loss to find a separate contract drafting could facilitate
string doubtless includes some translation for each of the near- change. In that regard, perhaps my
redundancy, a drafter would be rash synonyms interpreted, construed, and new book, A Manual of Style for
to eliminate every element except, say, governed by, not to mention by Contract Drafting (see above), will
lien without being sure that courts had and in accordance with. help move things along.

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