Contracts I: Would you sign this?
By Derek Gill Franßen

Abstract: Just because it is on paper doesn’t mean that it is set in stone. This article presents a few ideas on entering into translation agreements and dealing with standard terms and conditions used by translation agencies.


Introduction

I have noticed an increasing number of forum topics cropping up that basically address legal questions pertaining to translation contracts and the like. Most often, those asking want to know if some condition or clause in an agency’s contract is “normal” or if they should accept the standard terms and conditions sent along with the purchase order by some agencies. I'd like to illustrate some thoughts I've had on the subject.


1. Contracts

The first thing that comes to mind when I read all this talk of contracts is, “Where do they all come from?” Seriously, this year I have completed numerous translations and I can count on one hand the number of contracts that were written on paper or contained standard terms and conditions (less than 10%). There may be occasions, in which written contracts are useful, but these days most, if not all of my work is done completely electronically.

Usually, I receive an e-mail with no more than two or three sentences: “Dear Derek, Are you available for a translation of the attached document(s) with X words? How much will it cost? I need it by yesterday. Best Regards, PM”. My answer is usually a bit longer (I tend to be verbose), and includes a price and any questions I may have on the details. Then I get an e-mail stating that I can start, i.e. they have accepted the contractual conditions that we have negotiated. In most places around the world this means that a contract has come to be. How’s that for streamlining business?

This way of doing business is obviously quite risky. If you think about it (and many legal scholars do), there are quite a few things that could – and do – occur and that would be potentially damaging (they could cost money). But most of the time everything works out fine. Most countries have mechanisms to compensate for the predominate lack of negotiated contractual conditions, i.e. they have laws and legal theories. Most of these are directed at establishing what the parties actually (or probably) wanted. If all else fails, rules of fairness and custom will usually apply. Millions of contracts are entered into this way every day.

In my view, the best contracts are concise and only contain those points that are actually important. These points should at least include a description of the work to be done, a delivery deadline and the price.


2. Standard terms and conditions

Do you ever actually read them? I mean all the way through to the end? Be honest. You probably don’t. But you probably should. I can almost understand it when a consumer can’t be bothered to read the fine print, but if you are (acting as) a businessperson it is usually a different story. It also happens to make good business sense.

In Germany, for example, most questionable clauses simply – by law – don’t apply to consumers; for example, according to section 305c of the German Civil Code (BGB, an English translation of which can be found here: http://www.iuscomp.org/gla/statutes/BGB.htm), surprising and ambiguous terms are not included in the contract. Many of these protective measures do not apply, however, if you are a businessperson (cf. section 310 subsection 1 of the BGB). The reasoning is that, as a businessperson, you should know better. Do you?

Many clauses, such as those that say the translator will be held liable for (the actual) damages resulting from late delivery, go without saying; they are superfluous and, aside from serving to alert the translator, often only state what is already the law. You don’t need to be a lawyer, however, to know that a clause laying down draconian penalties for the translator if the slightest thing goes wrong is unreasonable – it just feels wrong. If you think that a particular clause is extreme, then it probably is.


3. Dealing with it

Short of contacting a lawyer, I can think of three possible ways of dealing with contracts or standard terms and conditions (or both): Either you accept them, you start negotiating or you turn down the work. It’s your choice – there’s no point in getting worked up about it. As with most things, there are advantages and disadvantages to all three reactions which I will discuss in no particular order below.

The advantage of turning down the work is that your risk of future problems from accepting the work is almost completely eliminated. The disadvantage is clear: No work = no money. It is that simple.

The advantage of accepting the terms and conditions in the hope that everything will turn out fine is that your business partner will undoubtedly be pleased. The disadvantage is that you may be running the risk of serious financial loss if something actually does go wrong (as I said above, most things work out, but never underestimate the universally applicable Murphy’s Law).

The advantage of negotiating those bothersome terms with your business partner is that there is a much greater chance that you will both be happier in the end. The disadvantage is that it takes time and may end up meaning that you occasionally don’t get the assignment.

It is my experience that most serious clients and agencies are willing to negotiate unless they lack business savvy, which is unfortunately sometimes the case, or their lawyer has told them to do otherwise, which is seldom the case. In fact, most translations were needed two weeks ago (see above) and your clients, i.e. the agencies if you are a freelancer, are rarely in a position to be insisting on applying their terms and conditions. It is often enough to guarantee to the client that as a professional you will – of course – keep the work confidential (non-disclosure) and, if your client is an agency, not bypass them, i.e. offer your services directly to their client.

A comprehensive translation agreement titled “Model Contract for Translators” from the American Translators Association (ATA) can be found under http://www.atanet.org/model_contract.htm and addresses most (if not all) of the issues that may be important to you as a translator. Remember that just because it is on paper doesn’t mean that it is set in stone – start negotiating. There is much to be said for limiting risks, but it shouldn’t get in the way of doing business; it should flow. Use common sense and keep it simple.

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The author, Derek Gill Franßen, is attorney at law (Germany) and translator (DE-EN) duly authorized by the Higher Regional Court in Schleswig, Germany. The author is also director of the Foreign Legal Terminology Program and lecturer for English Legal Terminology at the Law School of the Christian Albrecht University of Kiel in Kiel, Germany. The author would like to give special thanks to Kim Metzger for his helpful suggestions. Comments and constructive criticism are always welcome through www.legalese.de or the through the author's profile here on ProZ.com – please stop by for a visit.

Copyright 2005 Derek Gill Franßen