Distinguishing between formulaic language and contract information is, I believe, the key to translating contracts and other formal legal documents. The only thing that comes close to being as important is using target models, which is, anyway, just the other side of the same coin.
Why is this distinction so important? Because it helps you navigate and dissect the source document, and it tells you where to focus your translating power and what you should do in the places where you needn’t waste it.
What is formulaic language?
When it comes to legal language, formulaic language refers to set legal phrases — the often archaic-looking legalese that throws back to when legal transactions were ritualistic speech acts, e.g., “In witness whereof” and “Now, Therefore” — and also the template or format nature of a lot of operative legal documents (e.g., contracts, wills and petitions). (See Tiersma for more on all of this.)
For contracts, you could define formulaic language as:
- set formulas (the typical legalese structures)
- structural elements (numbering conventions)
- housekeeping/boilerplate clauses
- headings (of clauses, sections and the contract)
- style and syntax
Indeed, distinguishing between these elements (form) and other language and information in the contract (content) is fairly intuitive when you’re translating a contract.
Another way of looking at it is to say that formulaic language is anything that doesn’t make the contract you’re translating different from any other of the same type — or anything you could copy from an English model contract.
How does this distinction help?
Firstly, you waste no time on impenetrable legalese because you know it’s not important for the contract itself, despite its archaic guise and self-important appearance. This allows you to move down the page (there’s normally more formulaic language at the beginning — particularly in court documents but also contracts) and to get on to the far more important operative clauses, which you really must translate well and accurately.
Secondly, it tells you how you should translate these sections. Because we are talking about mere format and convention, all we have to do is use equivalent patches of English contracts that have the same function, i.e., that are about mere format and convention.
This means using functional or target-language equivalents. In practice, models — models of English contracts. Models are essential for translating contracts. Either models in your head, if you have a lot of experience with drafting/translating contracts, or authentic documents you find around the place.
What type of model you choose will depend on things like jurisdiction, language variant, possibly preferences of the client, and especially register and whether you want a traditional or modern style (talked about here a little bit).
Some concessions to source conventions
Of course, you usually will make some concessions to source conventions and include, or mould in a legal-English way, things in your translation you wouldn’t normally find in an English contract. Particularly if you are translating through intermediaries.
For instance, a functional translation of a Spanish contract into English could mean removing certain headings that don’t usually appear in English contracts and even joining sections together.
However, although doing this is acceptable, it’s not necessary. You can usually come up with an authentic-looking translation while tipping your hat to noticeable source elements to keep happy anyone wanting the documents to look similar, which, in any case, makes it easier to cross-check.