Contracts

First, a disclaimer: I'm not a lawyer, and this blog should not be construed as legal advice, which can be given only by attorneys authorized to practice in the relevant jurisdiction. Contract law is an extensive and complex subset of the law of obligations, and it would be pretentious on my part to offer advice applicable to specific situations in a specific jurisdiction.

This said, there are certain concepts that are almost universally accepted and with which businesspeople, including translators, should be familiar. According to Wikipedia, "[a] contract is an exchange of promises between two or more parties to do, or refrain from doing, an act which is enforceable in a court of law." A contract is sometimes also referred to as the verbal expression of a "meeting of minds," but this definition suffers from the disadvantage that courts cannot expect to guess what the contracting parties were thinking at the time they entered the contract.

Contrary to what many people think, oral agreements may be valid contracts; however, they have the disadvantage of lack of evidence if it comes to enforcement in a court of law. This is why ATA's Code of Professional Conduct and Business Practices recommends that translation buyers "put [their] contractual relationship with translators and interpreters in writing." Complying with this recommendation is actually in the interest of both parties, as it helps avoid misunderstandings or relying on the parties' recollection of what was agreed on.

A contract offered by one of the parties may be accepted by the other party either explicitly by signing it or, sometimes, by simply performing the service offered by the contract. This is why, if a translator is offered a job accompanied by a contract, it is important that the translator should not simply do the translation, but also read the contract, sign it, reject it, or offer amendments to specific clauses. A suggestion of amendment does not constitute acceptance of the contract until the other party has agreed to it.

What translators should remember is that contracts are often written by lawyers who know little or nothing about translation, use templates written for use in other industries, and often include terms and conditions that are simply not applicable to the translation vendor/buyer relationship or are unfair to one of the parties (usually the translator). The translator shouldn't be afraid of rejecting clauses he or she finds unacceptable by simple crossing them out or offering an alternative and returning the contract unsigned with an explanation and a request for an amended contract.

One important aspect of contract law is that the contract is effective only between (or among) the parties that have signed it. So if a client claims that he cannot pay you because his client hasn't paid him, he's attempting to involve a third party who is not a party to the contract between the translator and his client.

A contract may also be "implied" and still enforceable if there are good reasons for assuming its terms. Thus, if you have done English to Quechua translations, and nothing else, for a client for the past ten years and you receive an English text from the same client, it's reasonable to assume that the client will want that text translated into Quechua.

An e-mail from an existing client requesting translation may be considered a contract (if accepted), provided the terms are known from previous practice. Striking the proper balance between excessive formality and sufficient protection is the challenge we all face in our business relationships.