Quick tip for translating contracts (8): use only useful legalese (and when to use “hereby”)

While most contract drafting guides suggest we avoid legalese, they do usually see a point to what you could call “useful legalese”.

Hereby

Take “hereby”, for instance. In her book Essential Contract Drafting Skills, Tiffany Kemp recongnises it as legalese:

Hereby is a word really encountered outside of contractual language. Frequently misspelled (‘herby’!), It is littered throughout contracts and legal documents with abandon, lending them a pleasantly (or unpleasantly, depending on your taste) legalistic flavour. p. 48

But she concedes that “it has a very useful role in documenting obligations are fulfilled immediately upon the execution of the contract.” p. 48 (Emphasis mine.)

So “hereby” is useful for signposting performance language, i.e., things coming into effect on the signing of the contract (e.g., the granting or transferring of something).

Do not, says Kemp, use it “simply to add ‘weight’ to other provisions such as warranties and representations.” p. 48

This makes sense. But I couldn’t see why guides like Kemp’s say not to use “hereby” with verbs like “warrant”. As these types of statements of fact (parties warranting, stating or acknowledging that something is the case) appear to happen at the time of signing, you’d think they warrant (sorry, couldn’t resist) the use of “hereby”.

Language of declaration vs performance

However, according to Kenneth Adams’s style manual, statements of fact are actually “language of declaration”, which apparently works in the same way as performance language (in the sense that it’s happening in the act) but doesn’t usually go with “hereby” because “hereby” doesn’t usually go with “verbs of speaking”. So there you go. Mystery solved.

Incidentally and in line with Kemp’s approach, apart from using “hereby” for performance language, Adams also suggests steering clear of all the other here- and there- adverbs, including the much loved “herein”. He says we should just say “in this agreement”.

The “useful” criterion for legalese

In any case, this kind of “useful legalese” approach is fairly typical of most contract drafting style guides. So with regard to legalese and other types of jargon and technical language, the idea seems to be: If it’s useful and adds something, use it; if it’s not, omit it.

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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.

5 comments
  1. Rob, I would suggest that the use of these legalisms is required in translating (as opposed to drafting) a contract when they are the appropriate functional equivalent to the source text. Thus, if the Spanish says “en el mismo” then the best function equivalent in English would be “therein” (or “herein”). Likewise, the best functional equivalent of “por el mismo” would be “thereby”. Plain English concepts really don’t play a role here.

    • Whether a translation is “required” in terms of functional equivalence depends on whether it fits in with your target model and idea for what the type of document you’re translating should look like.

      Both “herein” and “thereby” are commonplace in English contracts, so both can be functional equivalents in the right contexts. But if you’re aiming to replicate the kind of model that doesn’t use “herein” or “thereby” for the functions in question, the best functional equivalents would NOT be those terms. Of course, they would be the best equivalents if you are looking to emulate a model that does use them.

      In practice, it might not seem like there is more than one appropriate option because we often end up translating the same document type the same way and using the same term for the same thing every time. However, there usually are other options, particularly if you’re talking functional over literal equivalence.

      • And as far as “herein” and “thereby” go … in contrast to what at least one of the drafting guides mentioned above says, I think “herein” is useful in contract translations because it can save a few words and is widely understood. So I use it on that basis — but not because it is necessarily a better functional equivalent than “in this agreement” or similar. I also use “herein” when the original says “en este acuerdo/in this agreement” (same function, obviously).

        As for “thereby”, while it’s probably also widely understood, I don’t think it adds anything special. At least not in the contexts I can think of right now. It’s usually very sidesteppable and surely rarely missed (even where it wouldn’t be out of place!). In any case, I don’t think I’d specifically blacklist it from my translations. It’s just not something I try to fit in.

        The “here/there” words I draw the line at are the obscure ones that don’t add anything special.

  2. In any case, I think it is important to emphasize that, unless otherwise specifically instructed by the client, it’s important for translators not to impose “plain English” rules when translating a source document if the source document isn’t using plain language itself. It’s not our job, and could be misleading, to “improve” upon the source (from a plain English perspective) by simplifying the target text. On the other hand, I am a big fan of re-arranging sentence structure to improve the readability of the text.

    • I agree. And except maybe for good criteria, I don’t recommend imposing anything. However, I do think we should try to provide the most useful translation possible in a format the reader expects and understands, which may vary according to the situation. Nothing else.

      Aside from that, I think setting out to improve a text is at best a bad idea and at worst presumptuous bordering on arrogant. Judging by the direction of your comments, though, maybe I’m not communicating my ideas as clearly as I could. In any case, some blog articles just talk about what other people (experts, usually) say without actually recommending a definite line (I may not have one).

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