Contract Translation: Are Bi-Lingual Digital Contracts Becoming More Important?
An end-user license agreement (EULA) is a legal contract between the author or publisher of a software application and the user of that software. The purpose of a EULA is to specify, in detail, the rights and restrictions which apply to the use of the software. One basic feature of a EULA is to hold harmless the software licensor in the event the application causes damage to the user’s data or computer. Many EULAs go further and propose limitations on what the licensor can be held liable for in regards to damages resulting from the use of the application. As you can imagine, EULAs can be lengthy and written in a highly technical and legal specific language.
EULAs are important legal documents in the software industry, which is an industry that has low barriers to entry in the global marketplace given the internet’s ability to reach global users. For this reason, translating EULAs is a common task for software companies and is a large undertaking given both their complexity.
Below we highlight some of the high-level challenges associated with translations end-user license agreements followed by practical approaches to addressing these issues.
Constant Language Adaption
Legal contracts are not only performative in nature, but also are meant to be informative and prescriptive to the signatories. This makes the accuracy of translating a contract crucial, given the amount of jobs the contract is working to achieve. Contract translation in general requires constant adaption of not only the legal text to properly perform the intentions of the contract, but also the adaption to be valid within the legal system of the target market. Not all countries operate under the same legal system so it is imperative to research the target country's legal system and adapt the contract accordingly. This step often takes place prior to translation.
Legal Language + Technical Language
Computer software is a highly technical field with a specific lexicon and its own set of dynamic global regulations related to the collection of user data and privacy. When you merge the technicality associated with software terminology and the technicality associated with legal text, you create a doubly complex document that requires a very specific set of skills for a translator and/or lawyer to possess. It is necessary for the party performing the translation to be deeply versed in software terminology, legal terminology, the local legal system, and the legal writing style in that particular jurisdiction.
Lack Exact Matching Words
Translation by nature is subjective and languages often do not have exact corresponding matches of specific terms of phrases. When framing translation within the legal contract umbrella, you often run into situations where one language does not have the exact equivalent of a given legal term. This often adds challenges to translation. A good example of this is the phrase ‘common law’, which often does not have an exact translation in languages where countries’ legal systems do not operate under ‘common law’. Another example is the word ‘agreement’ which is often used in the English language to reference a legal contract (E.g., end-use license agreement). In many languages, you would not want to translate the equivalent of agreement since it does not hold the same legal implications as the word ‘contract’ does in the United States.
Below are some practical suggestions and techniques with examples of how to address the above challenges:
Involve a Bi-Lingual Contract Lawyer
Translating an end-user license agreement without consulting a lawyer is a recipe for disaster. It most certainly creates legal risks, but it can also hurt your brand. A savvy international lawyer with relevant experience will help adapt the EULA for the right legal system and cultural style of writing. This will create instant credibility with an international user since it shows you spent the time and effort (and money) to internationalize the document for their user experience. These steps will also help protect you from any potential conflict. On the contrary, if you forgo this step, you risk losing trust in your users.
It may be tempting to use a translator or translation agency to handle the translation of the EULA for costs reasons. Keep in mind, it may end up being more expensive having a lawyer review and revise the work of the translator when correcting legal terminology that may have been mistranslated or other errors a non-lawyer would not know. There is a risk the overall expense may end up being higher than if you had a lawyer translate the document in the first place.
Legal Text Expansion
As mentioned above, there is often a lack of exact matching terminology when translating legalese from one language to another. We used the example of 'common law' since it does not have an exact equivalent in some languages from countries that do not use the common law legal system. Text expansion, or adding more words, phrases, or sentences than are in the source document, is a common strategy to help 'triangulate' the meaning you are working to achieve in the translation. Remember, the EULA is performative by nature, so do not feel compelled to stay within the rigid lexicon of the source document. It is okay to add more words if required to produce an accurate translation. When comparing English EULAs to their translation equivalent, you often see larger clauses in translated EULAs for this reason.
Legal Text Elimination
Like text expansion, text elimination is also a strategy to help produce accurate translations of EULAs. This technique can be employed when certain clauses, phrases, or other legalese text are not relevant within the legal system or culture you are translating the EULA for. An example of this are many of the archaic legal phrases that are still used today in legal contracts in the United States. A savvy lawyer will remove these if they hold no meaning in the country's legal system they are targeting.
Take a Holistic Approach
Lastly, and maybe most importantly, the translation of a EULA should be viewed on a holistic level. If the party completing the translation employs a word-for-word, phrase-for-phrase, or clause-for-clause strategy, you may risk damaging your brand and creating unnecessary legal risk. There are no mutually exclusive pieces of these project, thus it should be viewed as one overarching task and executed as such.