Translating Contracts: Terminology
Please note that the following terminology assistance is not offeredin lieu of legal advice nor is it an attempt to teach the law of contractsin fifteen minutes. It owes its creation to the misinterpretation of theword "consideration" by a translator in a published article.
Contracts in foreign languages that are to be translated into Englishsometimes follow American contract practices. Whether they do or not, itis helpful if the translator understands the terminology often used inan American contract. The translator can then use his judgment in interpretingthe particular document before him.
A Contract To the Businessman
A contract is an agreement between two or more parties whereby eachparty promises to do, or not to do, something. It is a transaction involvingtwo or more individuals, whereby each has reciprocal rights to demand performanceof what is promised (Barron's Dictionary of Business Terms).
A Contract To the Lawyer
A contract is a promise, or set of promises, for breach of which thelaw gives a remedy, or the performance of which the law in some way recognizesas a duty. The essentials of a valid contract are parties competent tocontract, a proper subject matter, consideration, mutuality of agreement,and mutuality of obligation (Barron's Law Dictionary).
A Contract To the Translator
For a translator, a contract might be explained in layman's terms.It is a deal, a meeting of the minds, and it happens everywhere and allthe time. Everyday events such as shopping in a store, buying a car, eatingat a restaurant, attending a movie are contracts because in each, one partymakes an offer requiring consideration that the other accepts. For example,the store displays goods for sale (an offer) that the buyer wants and pays(acceptance) for (consideration).
In most cases, contracts involve the exchange of goods or services formoney.
Once made, a valid contract is enforceable in court. It is an exampleof people making their own laws--within the guidelines established by statute,courts and tradition.
Types of Contracts include, but are not limited to, the following:
Contract of adhesion
Contract of hazard
Contract under seal
Retail installment contract
Step By Step Through the Life of a Contract
An action or indication by one party (the offeror) that he is willingto make an agreement with another party (the offeree), which, if accepted,will create a contract. A demonstration (manifestation) of the intent tomake a deal. Be careful of confusing who is the offeror and who is theofferee. The manifestation can be in many forms: spoken or written or displayed.An example of an offer: I (offeror) will sell you (offeree) my car forthree thousand dollars. An example of a non-offer: I am thinking of sellingmy car for three thousand dollars. Even if you say you'll pay me the threethousand, there's no contract because I never offered to sell it. An offerneeds four specific and definite terms: the who, the what, the price, thetime.
Both parties must be persons with the capacity to make a contract; thatis, they should be adults with the ability to understand what they aredoing. A person may be a natural person (a human being) or a corporation(legally incorporated group).
The subject of the offer must be definite and specific and both partiesshould know what they are contracting about. If I thought I was sellingthe red car and you thought you were buying the blue one, there may beno deal. This is the mutuality requirement of contracts. There must bea "meeting of the minds"; parties have to agree about the samething and the same terms.
The price or other consideration must be definite and specific.
The offeror specifies the length of time the offer remains open. "IfI don't hear from you by Friday, the deal's off." If no time is specified,the law implies a reasonable period of time, depending on circumstances.
2. The Acceptance
An offeree's agreeing to the terms of the offer, in a written contract,usually by signing it. Sitting down in a restaurant is an acceptance ofthe restaurant's offer. Silence or performance can be forms of acceptance.
An offeree's non-acceptance of the terms of the offer may be evidencedby outright rejection or by counteroffer.
Rejection of the terms of an offer with a simultaneous substitute offer.For example, "I'll buy your car if you wash it." This is notan acceptance; it's a counteroffer. It does not create a contract; ratherit creates a new offer, this time by the (former) offeree. Offers and counteroffersmay be negotiated on factors other than price, as in real estate, on financingarrangements, for example.
Something of value exchanged for a promise or performance and thatis needed to make an instrument binding on the contracting parties. Consideration,such as payment of twenty dollars to someone to mow your lawn, is the quidpro quo (something for something) of the deal. The mowing of the lawn andthe payment are mutual considerations.
6. The Contract
In its simplest definition it's an agreement between two or more parties.Each makes a promise that, if breached, is enforceable in court. Althoughcontracts may be oral, some specific contracts must be in writing to beenforceable. These include, among others: Contracts dealing with real estate,except for lease for less than a year. Contracts for the sale of goodsfor more than $500. Contracts for a job that lasts more than one year.Contracts in consideration of marriage, such as prenuptial agreements.Contracts that promise to pay someone's debts.
7. A Gift
A promise of performance given without anything of value in exchange isnot a contract. Usually, gifts or the promise of gifts are not contracts.
8. Promissory Estoppel
A doctrine, variously interpreted, that makes a promise binding, evenif there was no consideration, if that is the only way to promote justice.Promissory estoppel may be invoked, for example, if an employee was promiseda pension and at the fruition period, the promise is not honored. It isa defense against avoiding a promise, with specific requirements.
The putting into effect of what the contract specifies; the enactmentof what has been promised; in other terms: fulfillment or completion ofduty under a contract. Often called "execution" in European languages.In English "execution" generally means to formalize, to signand date the document, and should not be used as used in the foreign language.A performance bond guarantees that the contractor will perform the contractand provides, in the event of a default, that the contract may be completedor that damages may be paid by the guaranteeing party up to the bond limit.
Related terms: specific performance, substantial performance and non-performance.
10. Enforceable Contract
One which a court is likely to uphold when a remedy is sought.
11. Void Contract
Though it may have the necessary terms, a contract is not enforceableif, for example, it is an agreement to do an illegal act. It was null andvoid ab initio.
12. Voidable Contract
Examples: A contract with a minor, a contract that is grossly unfair toone party, one made unintentionally, or by misrepresentation, fraud orduress.
13. Breach of Contract
A party's failure to carry out the terms of the contract. Wrongfulnon-performance of any contractual duty of immediate performance. Failingto perform acts promised, by hindering or preventing performance or byrepudiating the duty to perform. There may be mutual breach.
When a breach occurs, remedies are used to right the wrong, to compensatethe non-breaching party for damages suffered on account of non-performanceof the other party. The remaining four terms are remedies:
Cancellation of the contract and returning the parties to their situationbefore the contract (status quo ante). To differentiate between the terms"rescission" and "cancellation": A court orders rescissionof a contract or that the contract be rescinded. The parties to a contractcancel it.
The parties, not performing the contract, may have to return itemsor money exchanged.
17. Specific Performance
Forcing one party to perform according to the contract, especiallyin real estate cases, for example, forcing the seller to sell the (unique)property.
18. Accord and Satisfaction
The parties may agree to settle for less than bargained for in thecontract. In effect, a new contract is entered into. Usually, less moneyis accepted than originally contracted.
Consult the chapters on contracts in the following:
1. The Uniform Commercial Code, which governs almost all commercial contractsin the United States today
2. The Civil Code of your State
3. The Statute of Frauds
References consulted in preparation of this article:
1. Black's Law Dictionary, 6th edition (St. Paul: West PublishingCo., 1990)
2. Barron's Law Dictionary (New York: Barron's Educational Series,1984)
3. Barron's Dictionary of Business Terms (New York: Barron's EducationalSeries, 1987)
4. Miriam Kurtzig Freedman, J.D. Legalese: The Words Lawyers Use andWhat They Mean (New York: Bantam Doubleday Dell, 1990)
5. Barbara J. Kalhammer, Attorney-at-law.