In Basic Legal Drafting, Anne Rutledge makes a useful distinction between promissory and descriptive language:
- A promissory statement is one that “articulates a promise” (what the parties say they’ll do), whereas;
- a descriptive statement is one that “does not articulate a promise to act, but describes a status, condition, policy” (about the details of the contract).
Why might this be useful? Well, for one thing, when translating from languages that may use verb tenses differently in contracts, it can help us determine what tense to use where in the translation:
- For promissory statements, Rutledge suggests using “will”, (she’s not into “shall”, “must” or any other construction of obligation for promises of the parties, as talked about here).
- For descriptive statements, use the present or past tense.
- And, while we’re talking about tenses, Rutledge, also tells us what type of tense to use in the recitals: past and sometimes present.
This advice is particularly useful to keep in mind when translating Spanish contracts so you don’t get caught up in the whirl of future tenses usually rife in them.
You can keep the future simple for promissory statements (if you don’t use “shall”), but it’s usually a good idea to get rid of a lot of them for descriptive statements.
If you’ve been translating contracts for a while, this advice is sure to gel because you probably automatically replace the future tense with the present on many occasions in descriptive statements, typically found in housekeeping clauses about things like the term and the governing law.
Just a rule of thumb
This distinction is quite rough and ready. For a more nuanced breakdown, see Chapter 3 of MSCD by Ken Adams, who breaks contract language down into language of:
- agreement, performance, obligation, discretion, prohibition, policy, conditions, declaration, belief, intention and recommendation.
Adams suggests, in each case, which tense and often even which verb is most appropriate. While this may seem overkill, his guidelines are actually very straightforward and easy to apply (post to come on this*), and I believe we should be aiming to understand the different types of contract language to this level of detail and be translating accordingly.
But, in any case, remembering the promissory-versus-descriptive distinction is a good first step to breaking the spell of the predominant future tense in Spanish contracts.
* I’m still to write this post, but you can find these guidelines and detailed advice on what tenses and verbs to use where in my ebook on translating contracts (available here). See sections 3.1 to 3.3 in Chapter 3.