WONDROUS WORKTOOLS – Contractual Terms discusses a very common issue we as legal translators have to deal with almost daily in our work. Well, this is the thing: are contractual terms always contractual terms? Actually not.
Terms and representations
In the first place, we have terms and we have representations. Only terms give rise to binding obligations. If a party to a contract breaches a term, the other party (the innocent party) may bring an action for breach of contract.
A representation, on the other hand, is a statement of fact, on which a party has relied, and that has led such party to sign the contract, but it is not a term. In case of breach, the remedy available to the innocent party is an action for misrepresentation, which is an action in tort, and not an action in contract. The innocent party has a right to rescind the contract and/or claim damages. Again, it depends on whether the misrepresentation was fraudulent (intentional or reckless), negligent or innocent (without fault).
So, how do we translate these words? Well, we have “clausole” and “termini” del contratto and we also have “false rappresentazioni”. What helps us is that the parties usually declare in the contract the effect they wish to assign to each clause. Essentially, whether a breach of that clause is “fundamental” and may result in termination of the contract, or not.
Conditions and warranties
Did you really think it would be that simple? I know you didn’t. I know you, like me, have come across “General Terms and Conditions” and “Representations and Warranties” clauses, or expressions such as: “(the party) represents and warrants” (or “represents, warrants and undertakes/agrees”), etc. We’ve all been there, lawyers love doublets and triplets, don’t they?
So, we have terms and representations, but terms can be conditions or warranties. Conditions “go to the root of a contract”; their breach gives the right to discharge the contract. A breach of warranty, on the other hand, does not exclude the effects of the contract, but may give raise to an action for damages (action in contract).
These words are usually translated in Italian as “condizioni” e “garanzie”, but This may create confusion with other forms of condizioni (conditions precedent and subsequent) and of garanzie (such as the product guarantee). Expressions like termini essenziali and promesse/impegni/dichiarazioni vincolanti are probably more precise.
(then we also have puffs. but let’s not be bothered just now). We should always make sure to convey the underlying concepts in the closest manner viable.
But
in the case of misrepresentation, the innocent party may claim damages compensating for all direct loss incurred. In an action for breach of a term, you can only claim damages that were reasonably foreseeable and not too remote (likely to occur).
Parties include clauses
to limit their liability in case of misrepresentation , such as the entire agreement clause and the non-reliance clause. In order to produce their effects, though, they must be reasonable.
in conclusion
Both in drafting and in translating an agreement into another language, the meaning and the effects the parties wish to achieve are of the utmost importance and influence the words used.
Follow the links below for more info on contract terms, representations etc.
http://www.learnenglish4law.com/contract-law-the-difference-between-representations-and-warranties/
https://www.lawteacher.net/modules/contract-law/construction/terms/lecture.php
WONDROUS WORKTOOLS – Contractual Terms is part of the Legal Translation section of this website.
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