ON THE TRANSLATION OF SET CLAUSES OF ENGLISH BUSINESS CONTRACTS BASED ON FUNCTIONAL EQUIVALENCE THEORY

基于功能对等理论探究英文商务合同固定条款的翻译

                                                              作者：赵震锋

Abstract摘要

 English Business contracts are involved in both the domains of business English and legal English. In recent years, with the increasing foreign trade of China, English business contracts involved in international business are increasing too. Set clauses in English business contracts are the fittest clauses patterns determined through the repeated selection and investigation of many related workers. This thesis mainly attempts to explore the translation of English business contract under the guidance of Nida’s Functional Equivalence Theory.

This thesis consists of five parts. Part one briefly states the research backgrounds, purpose and significance of this study. Part two mainly introduces the development process, major contents and principles of Nida’s Functional Equivalence Theory. Part three summarizes the stylistic features of business English contracts, such as: the employment of technical terms, archaism, “shall”, overlapping synonyms, as well as long and complex sentences. Part four focuses on the translation of the set clauses in English business contracts at the lexical, sentential and discourse level, etc.. The last part summarizes the main contents of this thesis, and reiterates the significance of this study. This study is helpful to the translators to have a better understanding of the set clauses in English business contracts, and apply the Functional Equivalence Theory to select the corresponding translation strategies, so as to improve the quality of their translation.

英语商务合同既属于商务英语范围，又属于法律英语范围。近年来，随着中国对外贸易往来的愈加频繁，贸易中涉及到的英语商务合同也越来越多。商务英语合同中的固定条款是通过相关工作人员的重重筛选和反复考察，最终确定下来的最为适当的合同条款模型。本文主要在奈达的功能对等理论指导现英语商务合同中固定条款的翻译。

本文由五部分组成。第一部分简述了论文的研究背景、目的和意义。第二部分主要介绍了奈达功能对等理论的发展过程、主要内容及原则。第三部分则概述了英文商务英语合同的文体特征，如：专业术语、古语、“shall”、叠义词以及长句和复杂句的应用。第四部分着重从词汇、句子和语篇等等面探讨了英语商务合同中固定条款的翻译。最后一部分总结论文主要内容，并重申论文研究意义。本研究有助于译者更好地了解英语商务合同中的固定条款，运用功能对等理论来选择相应的翻译策略，并提高他们的翻译质量。

 

Contents

1. Introduction

2. Nida’s Functional Equivalence Theory

  2.1 From Dynamic Equivalence to Functional Equivalence

  2.2 Related concepts of Functional Equivalence Theory

  2.3 Major principles of Functional Equivalence Theory

3. Stylistic Features of English Business Contracts

  3.1 Employment of technical terms

  3.2 Employment of archaism

  3.3 Employment of “shall”

  3.4 Employment of overlapping synonyms

  3.5 Employment of long and complex sentences

4. Functional Equivalence in Translation of Set Clauses in English Business Contracts

4.1 Functional Equivalence in lexical level

  4.1.1 Functional equivalence of legal terms

  4.1.2 Functional equivalence of archaism

  4.1.3 Functional equivalence of load words

  4.1.4 Functional equivalence of synonyms

4.2 Functional Equivalence in syntactical level

4.3 Functional Equivalence in textual level

5. Conclusion

References

 1. Introduction

In modern society, the international economic activities such as trade, finance, investment and economic cooperation which can not run without the related contract. With the rapid development of globalization and the constant improvement of the international trade, English business contracts grow in order to better specify and perform business cooperation. English business contract is the contract text, involving economic activities between the state, enterprises and organizations. English business contracts play an important role in international business activities and in ensuring the successful performance of every international business.

When China cooperates with foreign countries in economy, a contract will be finally concluded after negotiating and communication with business letters. Contract, as a formal written document, is the precondition to carry out business cooperation. Therefore, the translation of business English contracts has now become a brand of pragmatic translation.

In English business contracts, those widely-accepted set clauses in English business contracts are the fittest provisions, and they are now widely accepted after being repeated used by people. In this thesis, a functional equivalence targeted method for the translation of the set clauses in English business contracts has been explored. It starts with the introduction of functional theory. After a survey of the development of functional theory, functional equivalence put forward by Nida is proposed as a reasonable one to guide English business contracts translation. Then the stylistic features of English business contracts will be analyzed. Then, the thesis will analyze the translation of set clauses in English business contract based on functional equivalence theory. The thesis will analyze the words, sentences, and texts in English business contract. The study of the thesis can be a basis for future studies in translation skills and strategies.

2. Nida’s Functional Equivalence Theory

  The functional equivalence theory is the major theory in the translation of international business contract,which originated with the America people Eugene Nida.Nida is a linguist,and he has been the chairperson of the linguistic society of America.he put forward functional equivalence theory on the basis of reality.That is probably why his theory is close to nature by comparison.The core idea of the theory is that ‘functional equivalence’.Functional equivalence means that when you translate something,you do not need to correspond to the original text,routinely.instead,only you need to do is to make the two languages reach the equivalence in function.

  In addition,Nida’s definition on interpretation is not only the equivalence of lexical meaning,but also the equivalence of semantic and style.the information which interpretation conveys is both vocabulary and culture.The equivalence of “functional equivalence”refers to four aspects,that are the equivalence of lexicon,syntax,chapter and style.In Nida’s opinion,meaning comes first,format ranks second.

2.1 From Dynamic Equivalence to Functional Equivalence

Eugene A. Nida, His translation theory arises from his practice of Bible translation. Nida first proposes the two kinds of equivalence ,that are Formal equivalence and Dynamic equivalence in his book Toward a Science of Translating (1964). From his point of view, Formal equivalence requires the structure of translation to be close to the original’s which has a large impact on the accuracy and correctness of the translation of business contracts.but Dynamic equivalence focuses on the meaning and spirit of the original.it emphasizes on the effect equivalence.By comparison,Dynamic equivalence is more useful to the translation of business contract.Then in his From One Language to Another (1986), Nida has altered the concept of “Dynamic Equivalence” into “Functional Equivalence” which has been widely accepted and applied in the translation field. Nida’s translation theories have guided translation studies of various kinds, not only in America, but also other parts of the world.

2.2 Related concepts of Functional Equivalence Theory

In Language, Culture and Translating (1969: 118), Nida illustrates functional equivalence in two levels according to the degree of adequacy: the minimal equivalence and the maximum equivalence: on the one hand, a minimal and realistic definition is understood as the fact that “the readers of a translated text should be able to comprehend it to the point that they can conceive of how the original readers of the text must have understood and appreciated it”(Nida, 1969: 137); on the other had, the maximal definition is described as “target readers should be able to effectively appreciate and apprehend it in the same manner as source target audiences do”.(Nida, 1969: 143)

2.3 Major principles of Functional Equivalence Theory

Six principles aim at reaching a satisfactory functional equivalence of translated texts are proposed by Nida at the same time.

1. When translation results in misunderstanding of the designative meaning, changes or commentaries are needed.

2. When translation results in obscurity of the designative meaning, footnotes are warranted, even though the original texts are obscure deliberately because of the literary need or lack of adequate information.

3. When translation results in failure of understanding, semantical and syntactical changes are needed. An “adaptation” in translating is useful for most receptors whose social and educational levels are much lower than what the translated texts demand.

4. When translation results in misunderstanding of the associative meaning, distortion of textual style or loss of rhetorical devices, certain adjustments are needed.

5. The manner of translation should be taken into account when intend to adjust.  

6. When accompanying codes produced in translation process, phonology, lexicon, syntax and discourse adjustments are needed.

All in all, these principles above offer us a number of practical implications. Comparing to other types of translation, legal translation faces much more dilemmas and difficulties of translation. In this way, it is more appropriate to apply functional equivalence theory in the set clauses in English business contracts translation.

3. Stylistic Features of English Business Contracts

    Before translators have a clear understanding of set clauses, translators have to know what business contract is? Business contract is to confirm the right and duty of each party when two parties are establishing business relationship. It is a legal document which officially concluded according to the law, and each of the party should obey. It has a close relationship with the success of trade. Therefore, business contract is different from the average applied texts, English business contract has its own rules and usages. The stylistic features of English business contracts will be specified in this part.

3.1 Employment of technical terms

Technical terms has distinct features, the application of technical terms in business contract is to correctly describe all the transactions in business along with its related receipt and to correctly describe the rights and obligations between two parties in business activities, a lot of technical terms have been used in English business contracts. In business contracts, there are two kinds of technical terms. One is legal terminology, another is business terminology.

Legal terminology is the guarantee of words which can correctly conveyed in business contract. If the translator can not have a correct understanding of these words, it will lead to the vagueness of translating and understanding. so the translator must take care of these words. “Legal terminology always consists of the unique legal terms to express the concept of common core in law”, For example:

If a country is exporting more than it imports, it is receiving foreign currency and has a balance of trade surplus.(如果一个国家的出口大于进口，便是贸易顺差。)

The contract is concluded in case of acceptance of the offer.(要约一旦承诺，合同即行成立。)(Chen, 2006: 43)

In these sentences, balance, acceptance, offer are used their special meaning. in trade business, many words change their normal meaning,

 Business terminology is more frequently used in business contracts，it is  always written in acronym. It may be a true difficulty for an outsider to understand them. so the primary translator of business contract should be familiar with business terms. such as Force Majeure (不可抗力), document against acceptance(承兑交单), CFR(离岸加运费价), FOB(船上交货)，and so on. For example:

 Under the usance draft, the bearer shall present it to the payer for acceptance before the date of maturity. (如为远期汇票,持票人应在汇票到期前向付款人提示承兑)

  In this sentence, “acceptance” is used as business term, we may interpret “acceptance” as “接受” ，but，in the field of business，it should be interpret as “承兑” 

3.2 Employment of archaism

One outstanding characteristic of legal contract language is frequent use of archaism. The large amount of archaism in business contract should fully reflect the strict and serious style. Modern English is originated from archaism and load words. However they are less common in other styles of writing. Most archaism used in English contracts are compound adverbs, which combine “here, there, where and one or more of by, after, upon, under, with, to, of and at”, and so on. For example:

The Buyer hereby orders from the Seller the following goods subject to the following conditions.(买房据此向卖方订购下列商品，条件如下)

Neither party hereto may assign this contract.(此合同中任何一方不可转让该合同)

Here are other common archaisms frequently used in business contracts: hereinafter (following this 以下称), herein ( in this在…之中), hereby (bymeans of特此), hereafter (after this time今后;此后). The frequent use of archaic language in the contracts reflects the formal legal language but also makes it more obscure on the other hand. 

3.3 Employment of “shall”

The usage of words in business contract is formal language. Ordinarily, the word “shall” can fully reflect this characteristic. However, this usage has been less common. Yet, as a contract is “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law” (Mellinkoff, 1963: 32), “shall” is frequently used in English business contracts to express “have a duty to” or more likely “is required to”, as in:

 The property in the goods shall pass on delivery.(货物的财产权应以交货为转移)

 The Seller shall present the following documents to the bank negotiation.(卖方应将下列单证递交银行议付)

Thus it can be seen that “shall” is frequently used in plural or single form of any thing, referring to the rights and obligations enforceable at law. The usage of “shall” fully reflects the validity of legal contracts.

3.4 Employment of overlapping synonyms

Because they are useful for achieving precision in meaning and variety in style, such as, “terms and conditions”, “losses and damages”, “all and any” and so on, synonyms are widely used in English business contracts, which is a distinctive feature in lexical level, too.

Besides, the repetition of some words is necessary, especially in agreement. For example:

In case of quality discrepancy, claim should be filed by the Buyers within 3 months after the arrival of the goods at the port of destination, while of quantity discrepancy; claim should be filed by the Buyers within 15 days after the arrival of the goods at the port of destination. (Zhao, 2007: 20)

The synonyms connected by “with” and “or” are frequently employed. Here are some examples, “able and willing”, “annul and set aside”, “do and perform”, “each and every”, “force and effect”, “entirely and completely”, “have and hold”, “part and parcel”.

3.5 Employment of long and complex sentences

As a legal document, the use of lengthy, complicated and hard-understanding long sentences becomes a distinct feature of English business contracts. Business English contracts often use long and complex sentences in order to show formality and avoid disputes caused by omitting. For example:

SL: Should one of the parties to the contract be prevented from executing contract by force majeure, such as earthquake, typhoon, flood, fire, and war and other unforeseen events, and their happening and consequences are unpreventable and unavoidable, the prevented party shall notify the other party by cable or fax without any delay, and within fifteen days thereafter provide the detailed information of the events and a valid document for evidence issued by the relevant public notary organization for explaining the reason of its inability to execute or delay the execution of all or part of the contract.

TL: 由于地震、台风、水灾、火灾、战争以及其他不能预见并且对其发生和后果不能防止或避免的不可抗力事件，影响任何一方履行合同时，遇有不可抗力的一方，应立即用电报、传真通知对方，并应在15天内提供不可抗力详情及合同不能履行或者部分不能履行，或者需要延期履行的理由的有效证明文件，此项证明文件应由不可抗力发生地区的公证机构做出。(Li & Zhang, 2006: 100)

Such long sentences are to be seen easily in contracts, and although long sentences make it difficult to understand and translate, they clearly convey both parties’ rights and obligations. In that way, contract appears more precise, accurate and logical.

 

4. Functional Equivalence in Translation of Set Clauses in English Business Contracts

  In the process of translating, how to find an equivalent word or phrases in the target language to translate the original ones may be run with. Here , Nida’s functional equivalence concentrates on the reaction of readers .it means that we can judge the quality of the translation by the reflection of the readers. Thus, this theory is more useful for the translation of business contracts, because it considers the transformation of information as its major function. what’s more, the specific readers of the business contract are the parties to the transaction. the key to promise the success of the transaction is to understand the attempt and the principle of the other party. In the translation of business contract, the theory plays an important role in the choice of language form and language style. In the long tine of the translation practices, this theory proves that it can satisfy the different requirements in the business transaction to a large degree. and this theory is widely recognized as the guiding strategy of the translation of business contract. In a general way, lexical, syntactical and the textual level should be achieved.

4.1 Functional Equivalence in lexical level

Since business English set clauses consist of words, words are the most basic part of a text, so the translation of set clauses in the lexical level should be first talked about.

4.1.1 Functional equivalence of legal terms

There are a lot of legal terms in set clauses involving in English business contracts. All of these legal terms have specific meanings in the legal profession. Translators should try to find an equivalent in Chinese version to convey the exact meaning of the original one.

 For example:

Neither you nor any company within your own Group will, except with our prior written consent, create or permit to subsist any mortgage, charge (whether floating or fixed), pledge, lien, hypothecation or any other arrangement or interest (whether by assignment, trust, title retention or otherwise) which has the effect of creating security or payment priority over the whole or any part of your or their respective present or future undertakings, property or assets.

除本行事先书面同意，贵公司或贵公司集团内部的任何公司均不得订立或允许存在对贵公司或其各自的现有或未来的所有或任何部分的业务、财产或资产产生担保或优先偿付的任何抵押、押记（无论浮动抑或固定）、质押、留置、押货预支或任何其他债务安排或利息（无论通过转让、信托、所有权保留抑或其他）。(Hu, 2002: 219)

Here mortgage, pledge and lien are different forms of security, each has a specific meaning. According to the Security Law of the People’s Republic of China, the equivalents of these three words in Chinese, “抵押”、“质押” and “留置”，convey both designative and associative meanings. Nida (2004: 125) proposes “if a more or less literal correspondence is functionally equivalent in both designative and associative meaning, then obviously no or little adjustments in form are necessary”. Thus according to Nida, no adjustments are warranted here. Since they can be found equivalents in target language, we can leave it as literal translation.

4.1.2 Functional equivalence of archaism

Archaism is not commonly seen in daily use. However, it appears frequently in set clauses in English business contracts, such as “thereof”, “whereof” and “hereto”, to meet the requirements of business contracts. Usually this kind of archaism doesn’t have a direct equivalent in Chinese. Provided that translators can be aware of their designative and associative meanings, it is not difficult for them to find an equivalent to translate the original one.

For example:

The titles to the Articles are for convenience of reference only, not part of this Contract and shall not in any way affect the interpretation thereof.(各条款中使用的标题仅为了查阅方便，并非本合同的构成部分，决不影响本合同内容的解释)

Here “thereof” have no direct equivalent in Chinese, and we should find its associative meaning. According to the context, it means “of this document” or “of this contact”, which is its associative meaning. As a result, an adjustment is required to make the translation equivalent in meaning to the original sentence. So the translator should add the Chinese of “this document” and in this case it is “本合同”。

Another example:

Each of the parties hereby represents, warrants and undertakes to the other Party that, as of the date hereof and as of the Effective Date：…(各方兹此向另一方声明、保证和承诺，于本合同之日及生效日期：)

 In business English archaism translation, the translators should grasp the business English contracts translation standard, regarding Nida’s functional equivalence theory as the foundation, according to the specific context, and the translation methods should be suitable for different context. From the above sentence , “hereby” means “by this document” and its equivalent in Chinese is “兹此”. There is no need to make an adjustment since it is unlikely to lead to misunderstanding. The archaic word is formal, concise, grave and accurate, which can reflect the formality of contract and avoid repetition.(Li, 1998: 42)

4.1.3 Functional equivalence of load words

The usage of load words is a big difficulty in the translation of set clauses in English business contracts. Though they are not frequently seen in business contracts, once appear, translators without such knowledge will fail to translate it. Every translator should make themselves familiar with such words and apply their Chinese equivalent to their translation.

For example:

All your obligations to us will always save as provided by applicable laws of bankruptcy, insolvency, liquidation or similar laws of general application, rank at least pari passu in every respect with all your obligations of any kind, whether now or hereafter existing, to other banks and financial institutions.

除可适用的破产、无力偿债、清算等法律或类似的一般可适用的法律规定外，贵公司对本行全部的义务应始终与贵公司对其它银行或金融机构的现有或之后存在的任何一种义务在任何一方面均至少有同等地位。

 Pari passu is a Latin word, which means “at equal position and without preference”. In the contract, its Chinese equivalence is “同等”.

4.2 Functional Equivalence in syntactical level

It is obvious that translation of the whole text is definitely not as simple as word-for-word translation. What a translator should do is to convey the meaning as a whole. When translating the English business contracts, there are many set sentential patterns. it often takes a long time to read it, let alone translate it .Fortunately, This structure often appears in preamble, final clauses, payment, etc. if you can have a better understanding of one business contract which referred all of them, then you can translate other business contract in handy, because these patterns often appear in similar sentential.

(3) The expiry date of the L /C is to be the 15th day after the date of shipment.

(4) The L /C shall remain valid until the 15th day after the shipment.

The basic structure of sentence (3) and (4) is “subject + predicative + preposition” phrase. The examples above can be translated as “信用证有效期至发货后的第15日”.

The formatted structure makes the business contracts precise, accurate and normative, which has well achieved the functional equivalence in the stylistic level. Learning this structure is of great importance for contract translation.

Besides, as mentioned above, when translating the set clauses in English business contracts, it is often to see the complicated-structure and tight-logical sentences. The translator is required to achieve the functional equivalence when translating the sentential set clauses in English business contracts translation. Based on the Functional Equivalence theory, several techniques can be adopted: embedding, cutting, reversing, splitting, inserting and recasting. (Sun, 2008: 160)

For example:

SL: If a party breaches any of the representations or warranties given by it in Article 18.1 or repeated in 18.2, then in addition to any other remedies available to the other party under this contract or under Applicable Laws, it shall indemnify and keep indemnified the other party and the company against any losses, damages, costs, expenses, liability, and claims that such party or the company may suffer as a result of such breach.

如果一方违反任何其根据第18.1条或18.2条所做的陈述及担保或重述，则另一方除根据本合同或相关法律寻求任何可能的救济之外，违约方应当赔偿另一方或合营公司因此种违反而招致的任何损失、损害、费用、开支、责任或索赔。

In this example, at first, the translator should divide it by sentence groups, i.e., into four levels: (1). If a party breaches any of the representations or warranties given by it in Article 18.1 or repeated in 18.2; (2). then in addition to any other remedies available to the other party under this contract or under Applicable Laws; (3). it … claims;(4). that such party or the company may suffer as a result of such breach. Thus this complex sentence can be translated into:

Once translators realize and master the rules and standards, they can translate English business contracts in the accurate and logical way. By contrast, without understanding of the necessary rules and standards, the translators may run the risk of translating the English business contracts in a wrong way and, as a result, the inaccurate translation of the contracts may contributes to the disputes between parties concerned.

4.3 Functional Equivalence in textual level

Stylization of the textual structure is one of the major features of business English, especially legal documents, including English business contracts.(Sarcevic, 1997: 89) Its language is filled with strong regularity, formula, and stereotype program. Therefore, linguists think that any legal texts are followed the “formula set statement”. So the translation of the set clauses in English business contracts should also follow some formula. For example:

This sole Agreement is entered into through friendly negotiations between XXX Corporation (hereafter called Party A) and YYY Company (hereafter called Party B) on basis of equality and mutual benefits to develop business on the terms and conditions set forth below.

经XXX公司（以下简称甲方）与XXX公司（以下简称乙方）友好协商，本着平等互利发展贸易的原则，达成独家代理协议。兹订立条款如下。

This is a format of beginning in the legal texts, and most economic and trade contracts have the same begining.

From this example, it can be found that in fact, there exist so many set patterns in the contract texts. What translator should do is to follow those patterns and try the best to convey the complete and accurate meaning from the source text to target text, thus the functional equivalence will be achieved. Translator does not have to take trouble to translate the clauses and articles in a different way, but just follow the set patterns to save time.

 

5. Conclusion

The frequency of international communication and cooperation grows with the development of society. English business contract is playing a leading role in business activities. English business contracts work as a legal weapon for enhancing the development and being on guard for payment risk. As a legal document, business contract has distinctive features, such as using technical words, legal words, archaic words, synonyms as well as the long and complex sentences. Through this research, it concludes that business contracts have common elements in style and form, which is also one aspect of language features. It is important to study the translation of set clauses in English business contracts in that contract is essential with the rapid development of global economy. The author has made every effort to demonstrate the translation of set clauses at lexical, sentential and textual level.

However, the author misses some language features of English business contracts for limitation of time and knowledge. Some points should be analyzed more specifically and detailedly. In a word, this thesis is still a long way off perfection. Whatever, the author sincerely hopes this thesis is contributing to the study of the translation of set clauses in English business contracts in some way.