Legal principles – Lost in translation?
At Bargate Murray, a significant amount of the work we handle has an international element. This often means that our team has to consider the effect a foreign system of law may have on a particular matter. One example might be taking note of the manner in which a provision of EU law is interpreted in a particular EU Member State.
Another interesting example of this occurs where the terms of a contract require translation into another language, (say Russian for example) but are required to have the same legal effect as the English language version.
The issue is neatly encapsulated in David Bellos’ brilliant book on the history of translation Is that a Fish in Your Ear.
Bellos gives the example of the difference between the canons of construction that have developed in the USA and China. As more and more American companies are doing business in China, this is an issue which is becoming increasingly prevalent.
American law operates a principle of construction called the “class presumption”. According to the class presumption, if a contract provides that a particular clause applies to “any house, flat cottage or other building” then, by the force of the presumption, that “other building” is taken to mean only another building of the same class as the sorts of building expressly referenced in the clause.
Some readers may recognise a similarity between the class presumption and the English law rule of Eiusdem generis (“of the same kind”) which sometimes applies to restrict the meaning of general words, particularly those which, as above, appear as part of a list.
The effect of the rule is often counteracted by use of words which make it clear that the things identified in, say, a particular list are not intended to exclude others that are not of the same kind. One common way of doing this is to qualify a clause with a phrase such as “without limitation” or “including but not limited to”. Alternatively, if you have the time, a general qualification can be included as a stand alone clause along the lines of:
“Any of the words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.”
Getting back to the US/Chinese problem, Bellos notes that:
“Chinese, does not have a term for “class presumption” and its legal culture does not allow for it either. If the restriction expressed in English is translated without additional modification, the Chinese characters for “other building” refer equally plausibly to a factory or a workshop as to a residential building, a meaning that the “class presumption” of American legal English specifically excludes. You could of course insert additional Chinese characters to say “or any other similar building”…. But if it came to a dispute in court, a smart lawyer might be able to claim that the two versions of the contract were not exactly equivalent, since the English contains no words that correspond to added characters…”
The point Bellos makes is that this problem has prompted a simple, but clever solution which, in his view, makes “American legalese less arcane”. Drafting the english in a way that rebuts the class presumption:
“The solution is so simple that it makes you wonder why American contracts have not always said “house, flat, cottage or other similar building”.
“…because legal drafters have not had Chinese to help them until now. Chinese can teach English lawyers to say what they mean”
Irrespective of one’s position on how English is used by lawyers, this is an interesting example of how changes in business practices can prompt changes in legal ones.