The General Principles in Drafting a Contract (Continued)
Drafting and translating of contracts include the following characteristics:
Many people misunderstand that preciseness means 100% literally loyalty to the original text. Actually preciseness should be kept flexibly. In other words, the original text should be translated clearly. It include: (1) correct concept (2) correct understanding
“Completeness” means the original information should be completely translated into target language. That is to say, it not only correctly, but has not any omission or over-translation. Translation is an art but a creation.
To ensure professionalism, professional glossary should be used properly. We can not translate a English contract into a political article or literary one. The following is some tips in drafting contracts, though they are not totally listed.
It is often translated into“执行”by someone without considering the context. Actually it means“签订并交付”and the “performance” in “performance of a contract” means “执行、履行”. For example:
Note: Subsequent to the execution of this agreement, ABC Corp. changed its name to XYZ US Investment Company.
注: 本协议签署并交付后, ABC 公司更名为 XYZ 美国投资有限公司。
It has special meaning in legal area. It should only be translated into“住所”instead of“居所、住处、居住地、所在地、住的地方”
Shall, commonly used in English contracts, is emphasized on words in heavy semantics and not so emphasized as must. But the English contracts often use shall not must. Shall indicates a legal obligation and often translated into “应”。 May not includes any legal obligation and often translated into “可、有权”in mainland and“得”in Hongkong and Taiwan.
It is translated into “疏忽”in common use, but in English contracts, it is often translated into “过失”. And another word is fault, which is often translated into “过错”. Fault“过错” includes negligence“过失”and intension“故意”.
(5) The liability for damage includes fault liability and strict liability.
Attention should be given to damage and damages. The singular for damage refers to damage itself while the plural damage refers to liability for damage.
(7) Includes and consists of
Includes should be translated into“包括”and “consists of” should be translated into “由……组成” because behind includes is a non-exhaustive list while a exhaustive list following “consists of”.
(8) Participation and accession should be differentiated.
Participation is more general than accession. For example, participation a convention has two ways: one is through signing and approval; the other is through accession.
(9) Substantive law and positive law
Substantive law is translated into“实体法”relative to procedural law and it stipulate generally the rights and obligation among legal entities. And positive law is translated into“实在法”relative to the natural law and it indicates existing laws with legal force.
(10) Party and contracting party
Party is translated into “当事国（方）”,and contracting party is translated into “缔约国（方）”.
(11) Judgment, decision, decree, sentence, award, verdict, ruling
These words have different meaning
Logicality is an important and integral factor in drafting legal contracts, especially when describing rights and obligations. Natural development process should be noticed in contract writing.
Contractual wording should take the whole situation into account and keep consistent. We should pay attention to the following:
(1) Correct classical match
(2) Clear referent. The words “the, such, this, these, those, that, it and etc.” should clearly indicated in order to avoid confusion
For contracts, the concise wording firstly shows respect for customers and is another embodiment of lingual preciseness.
Some general principles are detailed in the above and is mainly from the language point of view.
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