摘要
改革开放以来，随着经济全球化快速发展，中国与世界的交流越来越频繁了。在我国对外经贸迅猛发展的同时，涉外经贸纠纷也越来越多。其中很多涉外纠纷在很大程度上是由合同文字原因引起的。由于合同的措辞不当，词义含糊不清，文义松散宽泛等原因，致使合同一方有意或无意地利用合同漏洞，逃避应该承担的责任和义务，结果就导致合同纠纷。大部分合同为英文本，而英文合同对语言有严格的要求，强调措辞准确、结构严谨、格式规范。因此，研究商务英语中的语言特征及其翻译原则十分有必要。
关键词：
商务合同；合同纠纷；语言特征；翻译原则
Abstract
Since the reform and opening up, with the dramatic development of economic globalization, china’s communication with outside world has become more frequent than ever before. The foreign trade has developed rapidly, at the same time, an increasing number of disputes connected with the economic activity have appeared. To a large extent, most disputes are caused by the text in the contract. Due to the existence of the inappropriate words, vague meanings of the words and loose sentences, one party in the contract may intentionally or accidentally make use of these contract flaws to evade their duties and obligations, which lead to the contract disputes. Most contracts are English version in China, and there is a strict requirement of the language, emphasizing accurate wording, rigorous structure and normative form. Thus, it is very necessary to figure out the linguistic features of English business contracts and its translation principles. Key Words:
business contract; contract disputes; linguistic features; translation principles.
Table of Contents 摘要 ............................................................................................................................................. I
Abstract ............................................................................................................... II
Chapter One Introduction .................................................................................. 1
1.1 Definition of Business Contract .................................................................................. 1
1.2 Categories of Business Contract .................................................................................. 2
Chapter Two Linguistic Features Analysis ....................................................... 3
2.1 Features of Business English ....................................................................................... 3
2.1.1Vocabulary and Contents Features ...................................................................... 3
2.1.2 Writing Styles Features ....................................................................................... 3
2.1.3 Sentence Features ............................................................................................... 4
2.2 Lexical Features of Business Contract ........................................................................ 4
2.2.1Preciseness and Conciseness ............................................................................... 4
2.2.2Formal words ..................................................................................................... 10
2.2.3Deliberate use of vague words ....................................................................... 110
2.2.4 Frequent use of absolute words ........................................................................ 10
2.3 Syntactic Features of Business Contract ................................................................... 10 Chapter Three Analysis of Contract Translation Principles ......................... 12
3.1 Faithfulness ................................................................................................................ 12
3.2 Accuracy .................................................................................................................... 13
3.3 Conventionalization ................................................................................................... 13 Chapter Four Conclusion ................................................................................. 14 Bibliography ...................................................................................................... 16 Acknowledgements ............................................................................................ 18
A Brief Analysis on the Lexical Rhetoric of Business English Contract
1 Chapter One Introduction Since reform and opening up, China has been deeply integrated into the world. And China’s entry of WTO (World Trade Organization) further promote a full-scale communications with the outside world, that is , nearly every field in China, like economics, trade, education, science, etc. have exchange and communication with the outside world. Along with this trend, Chinese people have an increasingly amount of contact with foreigners. Yet, because of the cultural, linguistic and legal system, many people, especially the business persons are challenged by various inevitable legal disputes from time to time. Business contract is an important tool for business activities as well as an essential and prominent component of business trades. Once a contract is signed, it becomes legally binding upon both parties. As most disputes are caused by the text in the contract, there is a call for doing a research on the linguistic features of business contract and the translation principles for business contract. Since we have to figure out the linguistic features of business contract, it is necessary to give a brief clarification of the basic knowledge of it. This chapter is an overview of business contract, including the definition, categories and structures of it. 1.1 Definition of Business Contract Before touching on business contract, it is very necessary to have a brief introduction of the definition of a contract. The origin of “contract” is a Latin word “contractus”. It means to “draw together”. At present, this term includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to perform or refuse to perform a certain act; or a contract is an act which contains a perfect obligation. In its more confined sense, it is an agreement between at least two persons, about something to be done, whereby both parties are bound to each other, or one is bound to the other. The Encyclopedia Britannica defines contract as an agreement between two or more parties that creates for each party a duty to do something (e.g. to offer goods at a certain price based on a specified schedule) or a duty not to do something (e.g., to break an employer’s trade secrets or financial status to third parties), which is enforceable by the courts.
A Brief Analysis on the Lexical Rhetoric of Business English Contract
2 Within Chinese law’s context, the definition of contract focuses on its functions, which means that “A contract refers to an agreement establishing, modifying and terminating the civil rights and obligations between subjects of equal footing, that is, between natural persons, legal persons or other organizations.” (2 nd
article, China’s Contrast Law, 1999). According to the Law Dictionary by Steven H. Gifis, contracts are defined as “a promise, or a set of promises, for breach of which the law gives remedy, or the performance of which the law in some way recognize as a duty”(Gifis, 2010:8). Despite the various definitions given by scholars at home and abroad, there is one point in common: A contract is an agreement, which legally binds the parties concerned. 1.2 Categories of Business Contract
There are various classifying methods of business contract in terms of fields, categories and contents in the business contracts. Based on the subject matter and obligations of the parties involved in the contract, business contracts in English can be classified into the following categories: A. Contracts for International Sale of Goods
B. Contracts for International Technology Transfer C. Contracts for Joint Ventures D. Contracts for International Engineering Projects E. Contracts Compensation Trade F. Contracts for Cooperative Development of Natural Resources G. Contracts for Foreign Labor Services H. Contracts for Supply of Equipment I. Binding Contracts J. Contracts for Sub-letting Project K. Contracts for Processing L. Lease Contracts M. Contracts for Sales Agency N. Consignments Contracts In addition to the contract categories listed in the chart, there are many other types of business
A Brief Analysis on the Lexical Rhetoric of Business English Contract
3 contract, such as Insurance Contracts, Storage Contracts, Agency Contracts, Contracts for Employment of Foreign Staff Members, and Contracts for International Transportation, etc.(Zhang Junming, 2004). Chapter Two Linguistic Features Analysis 2.1 Features of Business English
As a branch of English for Special Purposes, business English is intended for international business practices. Due to the specific features of it, business English has special way to transmit information in business practices. 2.1.1 Vocabulary and Contents Features According to Bhatia V. K. (1993), most business professional vocabularies can not be found the exact commentary in ordinary English dictionaries, such as those words for international trade, international finance, corporate management, international commercial law, etc. For example, the word “libor” stands for “London Inter Bank Offered Rate” in the international financial markets(Bussmann, H. 1996). With the development of international financial market, the usage of this term has expanded into abbreviations and its pronunciation of this abbreviation is used to stand for the whole term. Nowadays, it is even hard for people to recall its archetype. But this prevalent abbreviation can not be found in the ordinary dictionary, either. Some specialized words can be found in ordinary dictionary, but their specific meaning is not covered by the ordinary dictionary. There are countless such examples that the words for business usage have different meaning from those ordinary usages. For example, in ordinary dictionary, “nay origin” can be explained as negative meaning and used for the veto in the meeting vote. “origin” refers to birthplace, but is interpreted as “unspecified origin” in the international trade profession (Krashen, S. 1985).
2.1.2 Writing Styles Features The business English writing is practical and is concerned with the rights and duties between
A Brief Analysis on the Lexical Rhetoric of Business English Contract
4 two parties of a contract, thus it must be written and understood right. Mistakes in a contract may lead to some unnecessary troubles and even lawsuits. Thus, both the writer and the translator have to pay enough attention. Not only the spelling and punctuation should be correct, but more importantly, the content should conform to the facts, especially some data and terminology (Shippey, 2000). Take one sentence from a contract as an example: ”The goods supplied are exactly equal to the sample”. Just think a little bit, you may find that it is impossible, if not, difficult to ensure that the goods supplies are the same as the samples. In fact, only similarity can be ensured. Therefore, the statement should be adapted to “the goods supplied are similar in quality as samples”. Besides this, the correct use and understanding of commercial terms should be given enough attention. Business English serves business activities where the principles of equality and mutual benefit should be observed by both parties of the contract. Thus, the words used must be accepted by the public across the world. They should not be too colloquial, too informal. Then some simple and verbal prepositions and adverbs such as if, for, about will give way to specific prepositional phrases in business English, such as, in the event/ case of, on the grounds that, with reference to, for the purpose of, in the nature of, etc. 2.1.3 Sentence Features Business activities are usually economical and expeditious, which requires expressing the needs and purposes clearly and concisely, at the same time, to meet the needs of integrity and courtesy. Some concrete requirements are as follows: Firstly, the sentence should not be too long. If you want to express the reason of something, “because” is good enough. Do not use too complicated expressions, like due to the fact that, the reason why, given the fact that. Secondly, according to Jones, L. and Alexander, R(1994), simple and common words are preferred to obsolescent commercial terms. For example, now that the word “payment” can refer to reward, it is quite unnecessary to use such long and archaic terms “remuneration”. Finally, avert duplication should be avoided to keep control of the number of words in the text. 2.2 Lexical Features of Business Contract 2.2.1 Preciseness and Conciseness The preciseness and conciseness of language is an essential requirement for a contract.
A Brief Analysis on the Lexical Rhetoric of Business English Contract
5 Business English is used in business activities, such as making a business contract, and it is concerned with the business relationships and economic benefit of both sides. Supposing you mistake short ton as long ton, or regard Hong Kong Dollar as US Dollar, it will lead to the huge economic loss to both sides. Besides, the trouble and displeasure due to the inappropriate wordings will affect the business relationship between the two parties. A problem with the language of a contract may ruin the prospect of a business. In a word, when doing lexical rhetoric in business contract, we should frequently employ specific meaning words, special words and abbreviations, semi-special words as well as using nominalization phrases to replace clauses and sentences. 2.2.1.1 Frequent employment of specific meaning words
In business contract, specific figures should be employed to replace ambiguous meanings, which can take on a more specific and vivid expression. On the contrary, the abundant use of vague and abstract words may lead to a misunderstanding and unclear information. Ambiguous words tend to be vague in meaning, which makes the reader can not get the key point or misunderstand, or it will even deprive the reader of the interest to finish her/his reading. What is more, abstract words belong to ambiguous words; people will have various understanding of them. For example, a few, high, low, more, soon, early etc. these words will confuse or puzzle people. Compared with abstract words, specific meaning words can show us a clear and concrete meaning, which can help to set up a correct concept of what you want to express. Here are two examples as below:
1) We will amend the L/C as soon as possible.
In the example, a clear time of revising the L/C is not given due to the employment of ambiguous words “as soon as possible”. For preciseness, it should be changed into a specific time. We will amend the L/C on October 25. 2) Payment shall be made by Party B in a week. In the above sentence, the phrase “in a week” is a vague concept of time, which can be comprehended as “within a week” or “after a week”. So “in a week” should be rewritten into “within a week” or “after a week” in a contract. Improvement: ① Payment shall be made by Party B within a week after taking the delivery. ② Payment shall be made by Party B after a week the delivery is taken.
The following is the table of abstract words and specific meaning words. From the table, we may find out that specific meaning words can provide precise and persuasive wordings.
A Brief Analysis on the Lexical Rhetoric of Business English Contract
6 Abstract Words
Specific Words We wish to confirm our telex dispatched yesterday. We confirm our telex of July 2nd, 2000. We will deliver your things soon. The 200 cassettes you ordered on July 21 will be delivered on the 1st August. Your new, lightweight Electro Shredder can easily be carried from room to room. Your new Electro Shredder is featherlight. Weighting only 10 pounds, it can easily be carried. The majority of our stockbrokers voted for the new plan. 56 of our stockbrokers voted for the new plan. Your savings account will earn high interest. Your savings account will earn the maximum 6.5% interest each year. You will receive your refund cheque soon. You will receive your full $2345.00 refund cheque by September 1. 2.2.1.2 Frequent employment of special words & abbreviations
Quirk et al think that people will always adopt the most economic variant to express their views in a clear way in whatever kind of specific situation. There are many kinds of special words in business English, most of which tend to be in the form of abbreviations or combinations. Sometimes you might find out lots of abbreviations or combinations in a short sentence. It is the requirement of business activity itself as well as the performance of preciseness in business English context.
Abbreviations here refer to the shortening in one form or another of a word or expression. In English, there are three major forms: acronyms, clippings and blends. The motivation behind the use of abbreviations is primarily economy of expression, but each form has its own features and conditions for creation and usage. And in business contract, we can see that most abbreviations are acronyms. “Knowing how they are formed, and how they should be used in the appropriate context will add to one’s rhetorical competence in both speaking and writing the language.”(Feng Cuihua 131)
Business contracts are characterized by special words or technical words, which are the routine language expression in this specific context. For example: B/L — bill of lading （提单）
A Brief Analysis on the Lexical Rhetoric of Business English Contract
7 L/C — letter of credit
(信用证) VAT — value added tax (增值税) COD — cash on delivery （交货付款）
FAS — free alongside ship（船边交货）
FOB — free on board （离岸价）
ETA — expected time of arrival （预计到达时间）
FPA — free from particular average （平安险）
There are more examples in the following part, let us see how these special words are employed in business contract. 1) We are prepared to accept payment by confirmed irrevocable L/C available by draft at sight instead of T/T reimbursement. ( T/T: telegraphic transfer) 2) We only accept payment by confirmed (保兑的)，irrevocable (不可撤销的) letter of credit available by draft at sight (见票即付) for the full amount of the invoice value and that is should be established in our favor (以我方为受益人的) and reach us one month ahead of shipment, remaining valid for negotiation (议付有效) for another 21 days after the prescribed time of shipment and allowing partial shipments (分批装运) and transshipment (转运). Using the special words properly, especially the employment of abbreviations and combinations can avoid lengthy explanation, simplify transaction procedures, shorten trade process as well as improve work efficiency. Last but not the least, special words have a value of expressing the information precisely, so as to avoid misunderstanding and lesson the trouble of unnecessary lengthy explanation. 2.2.1.3 Frequent employment of semi-special words
It is suggested that words can be divided into three kinds according to their meaning and use: common words, semi-special words and formal words. Semi-special words are transformed from common words, they are highly employed and most of them belong to polysemy that is easily to use improperly. Therefore, it is the key point to learn how to select a correct meaning word of semi-special words for a better understanding of the contract. For example, “firm” is an adjective meaning “solid or securely fixed in place etc” in daily English. But putting in the business context, it means “not subject to revision or change, a firm offer or shipping firm”. One more example is “tramp”, which means “a person with no home or job that travels from place to place, usually asking people in the street for food or money” in daily English. But in business contract, it means “unscheduled vessel to distinguish
A Brief Analysis on the Lexical Rhetoric of Business English Contract
8 from liner”. 2.2.1.4 Employment of nominalization phrases to replace clauses & sentences
According to Li Taizhi’s preliminary statistics, 200 minor sentences might contain the same amount even more nominalization phrases in business English. It can suggest that nominalization phrases are highly used in business English. One of the advantages of using nominalization phrases is that they can convey ideas and information by a few words instead of a clause or even a sentence. Besides, it can make the sentence concise and brief. At least historically, a nominalization is a noun derived from another word class, usually a verb. In contract, the abstract nouns or noun phrases are intentionally used to replace verbs, which is so-called nominalization. The nominalization makes the style more formal and literary. As part of this discussion, we cite some examples of nominalization in contracts, with each example being followed by variation on that example. 1) The Party in breach shall have 30 days from receipt of a notice from the other Party specifying the breach to correct such breach if it is remediable. 2) …or alternatively it can be arranged by sending our representative to your office with samples for your inspection at our expense. 3) As you will have realized from the catalogue we sent in January, our blanket is a perfect combination of warmth, softness, and easy care. 4) The quality, quantity, condition and/or weight of the goods ordered by the buyer shall be in strict/exact conformity with the Contract stipulations. There are many other nominalization phrases in contract. Because of the limitation of the space we can not cite all the examples here. Apart from the nominalization phrases, adjective condensation is also frequently employed in business English due to the fast-paced business life. That is to say, to condense an attributive clause into adjective modifiers. For example: The tunnel, which was drilled for twenty-three miles, runs through a bed of solid chalk under the English Channel. For preciseness, it should be changed into:
The twenty-three-miles tunnel runs through solid chalk under the English Channel.
2.2.2 Formal words As a sub-variety of legal documents, business contract stipulates rights and obligations of both sides as well as the other related terms. In order to avoid misunderstanding and
A Brief Analysis on the Lexical Rhetoric of Business English Contract
9 ambiguity, there is a strict requirement of the language. It stresses the rigorous structure, accurate wording and normative form. It has the following characteristics: profession, single meaning and stability. “In particular, business contract frequently use business terminology, legal terminology and other formal words connected with legal language.” (Li Taizhi 98) Formal words may also be called learned words, or literary words, or “big” words. They mainly appear in formal writing, such as scholarly or theoretical works, formal lectures and addresses, political and legal documents. They are seldom used in daily conversation, except for special purposes, which distinguishes the discourse where they are employed from ordinary discourse. The following is a list of the comparison between common words in daily language and formal words in business contract. Common Words in Daily Language Formal Words in Business Contract because of by virtue of before prior to in effect in fact start/begin commencement stop to do cease to do want to do/wish to do intend to do/desire to do end expiry compensation indemnities about as regards/concerning to
2.2.3 Deliberate use of vague words
The language of the law is sometimes characterized as one of “extraordinary precision”, and “unambiguous”. (Mellinkoff 21) Precision is the driving force for the unique characteristics of contract English, which is critical to reducing the likelihood of misinterpretation. Generally speaking, it is necessary to use exact words but not vague words in contract except in some situations. “But precision is not necessarily extreme clarity-it may also involve selecting the appropriate level of vagueness or flexibility.” (Gibbons 38) Exactitude and completion are achieved by using both the accurate and vague words together. So the vague words are necessary for contract. For example, when signing contract, in order to express the rights and obligations of the Parties more precisely and avoid the flaws or holes in the contract, the appropriate use of vague words is permissible. For example:
A Brief Analysis on the Lexical Rhetoric of Business English Contract
10 Party A agrees to help Joint Venture to invite and recruit Chinese experts, technicians, workers and other personnel and Party B agrees to help Joint Venture to invite and recruit foreign experts. In the example, the expression of “other personnel” is vague. After listing the different kinds of personnel, such as experts, technicians, workers, the expression of other personnel is very general, which includes all the personnel recruited by Party A. Without the expression of other personnel, this clause sounds not so precise and complete. Frequent use of flexible words in legal language cannot be avoided. There is no precision without flexibility, and no flexibility without precision. Not only do we need precise language to establish the legal order which is needed in any society, but also we need deliberately use flexible words to add the abstractness and the generalization of the law. The parties use the vague words with the intent to make the contract more operative. 2.2.4 Frequent use of absolute words Since English contract belongs to legal English, it has the features of legal English. Business contract, a legal document, is highly impersonal in the sense that it aims at regulating the behavior of all the people rather than the behavior of a particular person. Some absolute words, such as: any, all, no, none, never, uniform, irrevocable, impossible, and no more, and no other purpose etc., are often adopted in legal English with the aim of enhancing the precision and leaves no room for exception. For example: 1) Without prior written approval, no party shall assign any and all of its rights and interests and delegate its responsibilities under this Agreement to any third party. 2) Each party and any of its affiliates shall maintain the secrecy of all Proprietary Information that may be disclosed or furnished to it by the CJV or the other Party and its affiliates, and neither of the Parties or their affiliates shall disclose or reveal any such Proprietary Information to any third party without explicit written authorization from the other Party. 2 2 .3 Syntactic Features of Business Contract
According to the Shorter Oxford English Dictionary, syntax refers to “the arrangement of words (in their appropriate forms) by which their connection and relation in a sentence is manifested”. From this definition, we can see that the word “relation” is very important in that, for one thing, it is relevant to sentence order, for another, in particular, it is associated with the relationship between the groupings of words in the sentence.
A Brief Analysis on the Lexical Rhetoric of Business English Contract
11 Syntax studies the rules about how to link words into sentences. On the syntactic level, structures are regarded as an important element of stylistic value(Fang Mengzhi,2002). In that way, various devices are employed to realize linguistic communication and then also provides more materials for stylistic analysts to analyze. 2.3.1 Use of Declarative Sentences In terms of function, sentences can be classified into four types: declarative sentence; interrogative sentences; imperative sentences and exclamatory sentences. As is known that business contract is about agreements or promises. It is mainly about promises that contain agreed exchanges. It is used to state truth to stipulate respective rights and obligations of related parties. The functions of declarative sentences are to state, to explain, to stipulate ans to make judgment. Thus, this decides the prevalent declarative sentences in business contracts. We can hardly find any interrogative sentences, imperative sentences or exclamatory sentences, which are often used to express feelings or emotions. 2.3.2 Use of Long Complicated Sentences Sentences in business contracts are much longer and more complicated than those we use in daily life. There are so many restrictions in a contract like the condition, time and place, etc that misinterpretation and ambiguity can be easily caused, which may even lead to disputes and conflicts between parties. While the long and complicated sentences can restrict various conditions in the contract. One example is given in the following to illustrate this: Either party may terminate this contract if the other party fails to fulfill or perform any of its obligations hereunder in the event that such failure remains unremedied sixty days after the service of a written notice by the party to the defaulting party specifying the failure in question and requiring it to be remedied (孙万斌，王恩铭，2008:171). Although this passage is long, it contains only one sentence. 2.3.3 Use of Passive Voice Business contract is objective, which determines the frequent use of passive voice. And the proposition “by” is often used to confirm who implements the rights and obligations. Even when the implementer is unknown, passive voice is also a good way to deemphasize it. For example: Upon the termination or dissolution of the partnership, the partnership will be promptly liquated, with all debts being paid first, prior to any distribution of the remaining fund. In the above example, the result of paying debts is important. Who settles the debts doesn’t matter so much. Therefore, the use of passive voice is appropriate here. 2.3.4 Conditional Clauses
A Brief Analysis on the Lexical Rhetoric of Business English Contract
12 Just as the above section has talked about, long and complicated sentences are more frequently used in business contract. And conditional clauses are one of the frequently used clauses in business contract. Because a contract is an agreement about the rights and obligations of the relevant parties while there are always conditions restricting the rights to be exercised and the obligations to be fulfilled. For example, If, within a certain period as specified in this Chapter, the Buyer fails to send personnel to join in the said inspection work, the Seller shall inspect it independently. Chapter Three Analysis of Contract Translation Principles Business contract translation belongs to business English translation, thus the principles of business English translation will be firstly discussed. It is suggested to put faithfulness at the first place based on the previous discussion and research. Business English may have different texts and thus have different translation principles. For example, advertising English aims to attract more consumers, thus its translation can deviate about 10% from the original text. As for business contract in English, it includes certain document formats, linguistic features, commercial terms and expression patterns. In fact, however distinctive the English business contract translation could be, faithfulness must be considered at the first place. 3 3 .1 Faithfulness
In business contract translation, faithfulness refers to that the translator should transfer the information included in the source language exactly into the target language. It does not require the exact consistency in grammar and sentence structure between the original text and the translated text. Simply speaking, faithfulness means information equivalence. According to Ellis, R. (1993), “it is essentially required that a text should be features by its style, where the spirit lies”. As regard to business translation, faithfulness also means that the translated version of a contract should conform strictly to the original text in terms of style, tone, mood, format and authoritative nature and so on. Besides, cultural transmission should also be taken into consideration if necessary because business takes place across border, which attaches great importance to cultural elements. That is to say, “faithfulness” in business contract translation is different from literary translation...