Quick tip for translating contracts (2): don’t use “undertakes to”

According to Tiffany Kemp in her book Essential Contract Drafting Skills (spoken about here), we shouldn’t use “undertakes to” because it’s legalese with no special meaning:

An undertaking is simply a commitment to do, or not do, a particular thing. It has no specific legal interpretation in English law, and adds no value to your drafting [translating, in our case]. p 39

Instead, she suggests using “shall” because it’s “shorter and clearer”.

Of course, if don’t like using shall, you’d just use whatever you use instead of shall but still avoid “undertakes to”.

Off the top of my head, I can think of cases where “undertaken by” still seems to be the best solution (e.g., when referring to obligations taken on by a party), but I’ll think about that next time it comes up.

Apart from avoiding legalese when you can, the other point here is to be consistent with your language for obligations (or promises) and avoid synonyms. Always something to keep in mind when translating from a language that likes synonyms (Spanish) to one that prefers consistency (English), at least in contracts.

Written by Rob Lunn

Rob Lunn is a freelance translator based in Spain. He translates from Spanish and Catalan into English and specialises in legal translation.

8 comments to “Quick tip for translating contracts (2): don’t use “undertakes to””
  1. I must say I never use ‘undertakes to’ because Americans don’t usually understand it and most of my translations go to a mixed international readership.
    A colleague once got very heated about this and said it was wrong of me to kowtow to Americans!
    It’s interesting that this UK book recommends against it.

    • God forbid kowtowing to Americans. Now that should be outlawed…

      It does actually fit in fairly well with her overall approach of getting rid of useless legalese. You could then ask why she doesn’t also do away with shall, but she obviously doesn’t think it’s useless.

      I have used “undertakes to” (without really paying too much attention to it) but probably won’t from now on. If it’s not necessary and doesn’t add anything (except a UK legal ring), why bother?

  2. One of the basic meanings of “to undertake” is “to promise”. To “undertake to do something” unambiguously means “to promise to do something”. As you well known, promises in exchange for something else (including another promise) are a form of “consideration” in contracts. So I’d say “undertake” serves a pretty useful and important purpose in drafting contracts. Of course, it’s merely a synonym and could easily be replaced by another verb, but it’s just not true to say it has no legal meaning.

    • Well, that is according to Kemp. But as far as usage goes, you’re right. It does mean “to promise” and amounts to language of obligation. At the very least because people do use it in this way.

      However, as you say, it’s just a synonym. Personally, for the sake of consistency and clarity, I don’t use “undertakes” in translations as I always use the same verb or element for the same purpose.

      One problem of using synonyms interchangeably in the one document is that people might read different meanings into the terms. For instance, people might start arguing that one promise is stronger that another, depending on what word you use, even though this doesn’t make any sense (you either promise or you don’t). I’ve seen people do this online with “will” and “shall”.

  3. I agree, albeit belatedly, with Adam.

    Anyway, whether or not Tiffany is related to the authors of Kemp & Kemp on the Quantum of Damages (yes, Rob, plural), she ought to know that the scenario of a Solicitor`s Undertaking is a lot more serious.

    Throughout the English Common Law world:

    https://www.liv.asn.au/PDF/For-Lawyers/Ethics/FINAL-19-12-15—Undertakings-Guideline—(approve.aspx

    the public, Land and Probate Registries as well as banks or building societies are entitled to rely upon the very wording of a Solicitor`s undertaking to do or omit something, so needs to be carefully worded.

    A promise also given by word of mouth in a social setting – like a pub or party – by a Solicitor in England & Wales, even without using that wording, will invariably be construed as an oral Solicitor’s Undertaking binding on the giver and enforceable by the Law Society on Chancery Lane in London by going to the High Court around the corner cf. a Lloyd`s Underwriter`s assurance that `my word is my bond`.

    • If agree with Adam, too. As is clear in my comment above.

      In defence of Kemp, that quote — out of context as it is in my post — might do her a disservice. She is talking about contracts. And when we narrow it down to contract language and style (which is what the post and Kemp’s book is about), your link is a red herring.

      Kemp isn’t the only one to recommend using only “shall” for obligation in contracts (Ken Adams is another). We should frame such advice as best practice recommendations. They are not saying you can’t do anything else (quite clearly you can, some people tell you never to use “shall” — you’ve got to make a decision one way or the other).

      Anyway, for the sake of clarity and consistency, I only use one thing, “shall”, for obligation in contracts and avoid synonyms like “undertaking” as much as possible.

      Just like differentiating between “damage” and “damages”, it’s a question of (good) style and using language precisely. Something I think translation clients want and are grateful for when they get it.

      However, there always are exceptions. For instance, I sometimes find “undertaking” to be the best fit and do use it in translations, particularly out of contracts when I want to avoid “shall” (see this post).

  4. OK, Rob, but a Solicitor’s Undertaking is a unilateral agreement or assurance with contractual force and the word ‘I undertake to…’ given by a consumer in the course of busibess, say to a Utilities Company to pay the latter’s bills, will take on a whole special meaning if it turns out that the consumer in point is a Solicitor (and, nowadays, also a Barrister).

    So to claim that undertakes to ‘is legalese with no special meaning’, albeit out of context with no qualifications, is dangerously categoric and treads litigious ground.

    • Yes, maybe she’d want to clarify/improve the wording of that sentence. But I only took her to mean in contracts (the context).

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.