In the civil law tradition, we have a little expression that goes nemo auditur propriam turpitudinem allegans meaning roughly “no one can be heard to invoke his own turpitude” and basically boils down to “tough luck.” If you don’t know what translation is from a legal point of view, then it will be very difficult for you to assess an agreement before entering into a contract. And, once you’re in, the contract will have to be blatantly abusive, unfair, inequitable or unlawful for you to be able to get out of it and exercise the rights to which you would otherwise have been entitled had you not bought into the widespread misconception that translation contracts involve the sale of goods, like hot dogs.
Imagine, for example, that an agency were trying to stick you with a clause by which you will not get paid until the end client pays the agency. If you took a look at your sources of law and understood what kind of contract you were dealing with, then you’d know that such clauses, though applicable to contracts of sales of certain commodity goods under certain circumstances in some jurisdictions, are not generally applicable to service agreements in a bunch of others. Imagine instead that your client wanted to add the creepy spy clause to your NDA, you’d know where to look for arguments against said clause. Or imagine an agency insisted on bulk discounts, you’d know better than to agree to it, because services are not subject to the rules of economies of scale.
All this can be confusing and overwhelming. So here are a few very basic legal concepts that may help you understand why translation is not a commodity good and gain a little perspective on how to exercise your rights.
Sources of Law
There are two variables that will determine the sources of applicable law in your translation contracts:
1. Legal Tradition:
Regardless of where you are on the planet, the legal world is divided into two parts: common law and continental law (aka civil law) countries. If you are in the US, UK or former British colonies, you are most likely under some form of common law. If you are in Continental Europe, Latin America, former French or Spanish colonies, you are most likely under a civil law system. If you are in Japan, for example, you are under a civil law system with some common law elements (aka mixed). Roughly half of the world is under common law and the other half under civil law or hybrid systems like those of Japan or Brazil.
What does this mean to translators?
I am oversimplifying this a bit, but what it basically means is that if you are in a common law country, your main source of contract law will be legal precedent and if you are in a civil law country, your main source of contract law will be some form of Civil and/or Commercial Code. Although the laws that govern contracts under each tradition are very similar and overlap, there are important practical differences that affect how contracts are drafted in the first place and how certain concepts will be phrased. Civil law contracts can be shorter because they incorporate the Codes by reference, whereas common law contracts may be longer because lawyers try to cover all possible eventualities in a contract. Hence, translation NDAs get longer and longer as agencies expand their businesses across borders. But even in civil law countries, contracts are getting longer as international business relations become more complex. However, freedom of contract is a principle that will be upheld under both systems, what will change is how that principle is interpreted or how willing the courts will be to help you out if you sign something you probably shouldn’t have signed. So before signing you need to know what law governs your contract (yours or that of your client) and what your options are if things go sour. There is no single right answer to this. It depends on where you are in the world.
2. The type of contract we are dealing with:
The contract pie can be divided into three: contracts for the sale of real estate, contracts for the sale of services, and contracts for the sale of goods. Real estate and services are subject to the common law versus civil law conundrum explained above. However, contracts for the sale of goods are governed internationally under the US Uniform Commercial Code (in the US or when working with clients in the US in contracts governed by US law) and the United Nations Convention on Contracts for the International Sale of Goods, and other applicable laws. You will not find “translation” in the UN Convention, for example, because translation is not a “good”. The reason for this is that goods require manufacture or production, and both terms are legally understood by the Convention to require the use of raw materials or components for making something. Of course, “to produce” is also understood in ordinary language as causing something (to produce a result or a play, for example), but that interpretation is inapplicable to the Convention. Lastly, in article 3(2), the Convention explicitly excludes the parties who furnish labor or other services.
Legal Logic Unraveled
Lawyers like to classify everything and fit the world into the categories we create. When we get it right, it makes everybody’s life a lot simpler; when we get it wrong, we end up in court. If something does not fit into one of our categories, then it has to fit into one of the others. Sometimes, when such classifications are extremely complicated, we even come up with “residual categories” where we stick everything that does not fit neatly anywhere else (this is especially true of civil law countries). Thus, if translation is not legally construed as a “good” because it’s not manufactured or produced under the broadly accepted definition set forth in the Convention (or similar sources of law), then legal logic dictates it has to fit into one of the other two: real estate or service. Translation is obviously not real estate, either. Therefore, translation is a service. Of course, I’m once again oversimplifying this, but the point really is that translation is a service; except literary translation which is derivative intellectual work and therefore subject to intellectual property law, but that’s a whole other story.
Understanding what translation is from a legal point of view is key to exercising your rights as a professional translator. So, wherever you are in the world, try to find out what system you’re in. Take a look at your applicable law. Talk to a lawyer in your area, some of us are actually pretty decent human beings and happy to help. But whatever you do, don’t believe people that equate translation to selling hot dogs, no matter how many times agencies refer to you as a “vendor.” And while we’re on the subject of vending, why not check out Steve Vitek’s post (which inspired my post) here?