Jurilinguistic translation of legal contracts

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Key aspects and problem areas in the jurilinguistic translation of
certain forms of legal contracts in terms of terminology transfer
between two different legal systems: Polish and English.

Joanna J. Rek – Harrop
Translator & Interpreter
MA University of Birmingham (UK), DPSI (Law) Chartered Institute of Linguists (UK)

Abstract: The translation of legal terminology used for establishing facts in court
cases cannot be performed without regard to legal-cultural concepts and
differences between legal systems. The level of equivalence of the terms
depends on the extent of relatedness of the legal systems and not on that of
the languages involved. Official legal translators would therefore benefit
from legal training.

Key aspects and problem areas in the translation of the legal terminology
of contracts that originate from the Polish civil law tradition and the
English common law culture remain under-explored.

This study analyses this field and is based on five official translations of
English contracts that can be accepted for the purpose of evidence in a
Polish Court. It first examines relevant theoretical framework and
translation practice. Then a chapter on the translation process considers
contextual differences between Polish and English law and focuses in
detail on terminological issues present in the selected contracts, providing
practical examples of how these issues were resolved. On the basis of
survey results the paper proposes the most accurate form of legal
terminology translation and finally considers whether it is possible for the
target language contract to have the same legal effect as the original.

Key Words: jurilinguistic transfer, cultural transfer, legal translation, legal discourse,
cultural implications, legal meaning, legal terminology, referencing, legal
conventionalities, lexis, syntax, context, legal tradition, contract,
agreement, equivalence, function, legal systems, civil law, common law,
legal function.


CONTENTS

CHAPTER 1 INTRODUCTION 1

CHAPTER 2 LINGUISTIC THEORY for LEGAL TRANSLATION 4
2.1 The theoretical framework 4

2.2 The issue of equivalence in legal translation 7
2.2.1 Functional equivalence 8
2.2.2 Alternative equivalents and translating methods 12
2.3 The translator’s agenda 14

CHAPTER 3 THE TRANSLATING PROCESS 16
3.1 Polish and English Law – contextual differences 16
3.1.1 The function of contracts in two different legal systems 17
3.2 ST Reader, TT Reader and Ideal TT Reader 18
3.3 Subcategories of legal terminology 18
3.3.1 Purely technical terms
19
3.3.2 Semi-technical terms 21
3.3.3 Non-technical terms 26
3.4 Latin terms 30

3.5 Terms of French and Norman origins 31
3.6 Archaic Anglo-Saxon terms 32
3.7 Terminological errors 33
3.8 Terminological vagueness 34
3.9 Names and entities 37
3.9.1 Business entities 37
3.9.2 Names of English institutions and legal acts 39

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CHAPTER 4 SURVEY 40

CHAPTER 5 CONCLUSIONS 43
APPENDIX I Contracts and translations 45
APPENDIX II The legal terminology 65
APPENDIX III The survey with results 69
APPENDIX IV Translation of the Polish Court Translator Code 71

Figure 2.1 Near-functional equivalence 8
Figure 2.2 Partial functional equivalence 9
Figure 2.3 Non-equivalence 10

REFERENCES 75

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CHAPTER 1 INTRODUCTION

Legal translation has been described by researchers as a category in its own right
(Garzone, 2000: 395). This is mainly due to the complexity of legal discourse that
combines two extremes: the resourcefulness of the literary language used for the
interpretation of ambiguous meanings and the terminological precision of specialised
translation. The translation of legal terminology requires particular attention because
it ‘consists primarily of abstract terms deeply and firmly rooted in the domestic
culture and intellectual tradition’ (Chromá, 2004: 48) and thus entails a transfer
between two different legal systems, each with its own unique system of referencing.
An excellent example of problems relating to the translation of such terms may be
found in the official translations of contracts.

In this study, I will analyse key aspects and problem areas to be considered by a
translator in the translation of the legal terminology of contracts that have their origins in
English common law and are translated into Polish civil law. The study is based on five
official translations of English contracts that can be used for the purpose of evidence in a
Polish Court. Such translations are done by qualified translators who are required to
swear to the accuracy of their work. The official translations were prepared on the
assumption that the target text reader is a legal professional. However, the proposed
translation choices took into consideration the fact that the aforementioned targeted legal
professional comes from a different legal tradition and that there is consequently a
difference in his/her referential classification.

The selected contracts consist of: an Employment Contract, a Cohabitation Agreement, a
Tenancy Agreement, a Guarantee Agreement and an Agreement for the Sale of a Vehicle,
all taken from ‘301 Legal Forms, Letters and Agreements’ (2005) by Lawpack
Publishing that I translated into Polish language using five bilingual dictionaries of legal

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terms and a ‘Lexicon of Law Terms’, all published after 2004, and recent monolingual
material in the form of the Encyclopaedia of [Polish] Law, the Collins English
Dictionary, the Oxford Dictionary of [English] Law (listed in the References) and the
Birmingham University Bank of English Corpora.

The paper consists of five chapters. Chapter 2 will discuss the relevant theoretical
framework and translation practice. It will focus on the issue of equivalence in legal
translation, paying particular attention to functional equivalence and a selection of
alternative translating methods. The chapter will also assess problem areas and the
translator's agenda when dealing with this type of translation. Chapter 3 will analyse the
translating process and will thus consider contextual differences between Polish and
English law, Polish and English legal languages and, associated with them, the function
of contracts in two different legal systems and their target text readers. The chapter will
then focus in detail on terminological issues present in the selected contracts, providing
practical examples of how these issues were resolved in their proposed official
translations. In order to analyse the benefit of legal training for translators when dealing
with terminological issues, the paper is supported by a survey of experienced
professionals working with the language pair Polish/English. The survey results
presented in chapter 4 include proposals, based on their opinions, as to the most accurate
form of terminology translation and analyse whether it is possible for the target text to
have the same legal effect as the original. Chapter 4 also includes a summary of changes
that have influenced official legal translators of contracts working with the
aforementioned language pair. Chapter 5 provides conclusions based on the analysis and
findings presented in the paper.

The four appendices consist of all the aforementioned original contracts and their
proposed official translations into Polish, the terminology of all the translated legal
documents, the survey questions with results and the Code of Practice of the Polish
Society of Sworn and Specialised Translators (TEPIS) that I translated into English.

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The reference abbreviations used throughout this study are as follows: ST1 (source text
1) = Employment Contract in English common law; ST2 = Co-habitation Agreement in
English common law; ST3 = Tenancy Agreement in English common law; ST4 =
Guarantee Agreement in English common law; ST5 = Agreement for the sale of a vehicle
in English common law; § 1 = paragraph one; § 2 = paragraph two, etc.; TT1 (target text
1) = Employment Contract translated into Polish civil law; TT2 = Co-habitation
Agreement translated into Polish civil law; TT3 = Tenancy Agreement translated into
Polish civil law; TT4 = Guarantee Agreement translated into Polish civil law and TT5 =
Agreement for the sale of a vehicle translated into Polish civil law; SL (source language)
= English; TL (target language) = Polish and BT (back translation) = from Polish into
English language. My personal comments are added in square brackets.

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CHAPTER 2 LINGUISTIC THEORY FOR LEGAL TRANSLATION

Different languages divide semantic space in different ways and this theoretically
excludes any possibility of finding full equivalence of Polish and English terms.
Additionally, the legal translations analysed here cannot be carried out in isolation from
the legal cultural concepts and differences of legal systems. Theory helps to open up a
series of possibilities and alternatives to make legal translation a practical possibility.
The theoretical framework to be discussed here looks at the researched views of scholars
on translation methods used for the transfer of legal language, the translator’s stance
when selecting a relevant method and the issue of equivalence of the main component of
the legal language - the terminology.

2.1 The theoretical framework

Sinclair proposes that the advantage of a theoretical framework is that it offers a quick
route to sophisticated observation and insight (2005: 13). From the epistemological
perspective legal translation stands at the crossroads of legal theory, language theory and
translation theory and therefore the scholarly views presented below combine a selection
of aspects from these disciplines. The most general view is Schleiermacher’s distinction
that refers to foreignization and domestication of the TT:

‘The translator can either leave the writer in peace as much as possible and bring the reader to
him, or he can leave the reader in peace as much as possible and bring the writer to him.’
(Schleiermacher von, 1838: 47, as translated in Wilss, 1982: 33)

‘Bringing the reader’ to the ST would require the TT reader to process the translation in
its original foreign context, while ‘bringing the writer to the reader’ would mean
domesticating the ST in terms of the context familiar to the TT readers and thus making it
easy for it to be assimilated by them. Comparable methods are considered in translation

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Jurilinguistic translation of legal contracts

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