www.harroptranslations.com 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 & InterpreterMA 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.
www.harroptranslations.com CONTENTSCHAPTER 1 INTRODUCTION 1CHAPTER 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 14CHAPTER 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 2
www.harroptranslations.comCHAPTER 4 SURVEY 40CHAPTER 5 CONCLUSIONS 43APPENDIX I Contracts and translations 45APPENDIX II The legal terminology 65APPENDIX III The survey with results 69APPENDIX IV Translation of the Polish Court Translator Code 71Figure 2.1 Near-functional equivalence 8Figure 2.2 Partial functional equivalence 9Figure 2.3 Non-equivalence 10REFERENCES 75 3
www.harroptranslations.com 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 atranslator in the translation of the legal terminology of contracts that have their origins inEnglish common law and are translated into Polish civil law. The study is based on fiveofficial translations of English contracts that can be used for the purpose of evidence in aPolish Court. Such translations are done by qualified translators who are required toswear to the accuracy of their work. The official translations were prepared on theassumption that the target text reader is a legal professional. However, the proposedtranslation choices took into consideration the fact that the aforementioned targeted legalprofessional comes from a different legal tradition and that there is consequently adifference in his/her referential classification.The selected contracts consist of: an Employment Contract, a Cohabitation Agreement, aTenancy Agreement, a Guarantee Agreement and an Agreement for the Sale of a Vehicle,all taken from ‘301 Legal Forms, Letters and Agreements’ (2005) by LawpackPublishing that I translated into Polish language using five bilingual dictionaries of legal 4
www.harroptranslations.comterms and a ‘Lexicon of Law Terms’, all published after 2004, and recent monolingualmaterial in the form of the Encyclopaedia of [Polish] Law, the Collins EnglishDictionary, the Oxford Dictionary of [English] Law (listed in the References) and theBirmingham University Bank of English Corpora.The paper consists of five chapters. Chapter 2 will discuss the relevant theoreticalframework and translation practice. It will focus on the issue of equivalence in legaltranslation, paying particular attention to functional equivalence and a selection ofalternative translating methods. The chapter will also assess problem areas and thetranslators agenda when dealing with this type of translation. Chapter 3 will analyse thetranslating process and will thus consider contextual differences between Polish andEnglish law, Polish and English legal languages and, associated with them, the functionof contracts in two different legal systems and their target text readers. The chapter willthen focus in detail on terminological issues present in the selected contracts, providingpractical examples of how these issues were resolved in their proposed officialtranslations. In order to analyse the benefit of legal training for translators when dealingwith terminological issues, the paper is supported by a survey of experiencedprofessionals working with the language pair Polish/English. The survey resultspresented in chapter 4 include proposals, based on their opinions, as to the most accurateform of terminology translation and analyse whether it is possible for the target text tohave the same legal effect as the original. Chapter 4 also includes a summary of changesthat have influenced official legal translators of contracts working with theaforementioned language pair. Chapter 5 provides conclusions based on the analysis andfindings presented in the paper.The four appendices consist of all the aforementioned original contracts and theirproposed official translations into Polish, the terminology of all the translated legaldocuments, the survey questions with results and the Code of Practice of the PolishSociety of Sworn and Specialised Translators (TEPIS) that I translated into English. 5
www.harroptranslations.comThe reference abbreviations used throughout this study are as follows: ST1 (source text1) = Employment Contract in English common law; ST2 = Co-habitation Agreement inEnglish common law; ST3 = Tenancy Agreement in English common law; ST4 =Guarantee Agreement in English common law; ST5 = Agreement for the sale of a vehiclein English common law; § 1 = paragraph one; § 2 = paragraph two, etc.; TT1 (target text1) = Employment Contract translated into Polish civil law; TT2 = Co-habitationAgreement translated into Polish civil law; TT3 = Tenancy Agreement translated intoPolish 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 intoEnglish language. My personal comments are added in square brackets. 6
www.harroptranslations.com CHAPTER 2 LINGUISTIC THEORY FOR LEGAL TRANSLATIONDifferent languages divide semantic space in different ways and this theoreticallyexcludes any possibility of finding full equivalence of Polish and English terms.Additionally, the legal translations analysed here cannot be carried out in isolation fromthe legal cultural concepts and differences of legal systems. Theory helps to open up aseries of possibilities and alternatives to make legal translation a practical possibility.The theoretical framework to be discussed here looks at the researched views of scholarson translation methods used for the transfer of legal language, the translator’s stancewhen selecting a relevant method and the issue of equivalence of the main component ofthe legal language - the terminology.2.1 The theoretical frameworkSinclair proposes that the advantage of a theoretical framework is that it offers a quickroute to sophisticated observation and insight (2005: 13). From the epistemologicalperspective legal translation stands at the crossroads of legal theory, language theory andtranslation theory and therefore the scholarly views presented below combine a selectionof aspects from these disciplines. The most general view is Schleiermacher’s distinctionthat 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 inits original foreign context, while ‘bringing the writer to the reader’ would meandomesticating the ST in terms of the context familiar to the TT readers and thus making iteasy for it to be assimilated by them. Comparable methods are considered in translation 7