A Legal Distinction Between Translating and Selling Hot Dogs

Marty Selling Hot Dogs

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?

Advertisements

23 thoughts on “A Legal Distinction Between Translating and Selling Hot Dogs

  1. Mercedes Guhl says:

    Very interesting and enlightening, Paula! I’d only add that the problem of selling translation vs. hotdogs is not just a legal one from the client standpoint. I have met many fellow translators, unfortunately, who view their craft as some sort of “making goods” instead of providing a service. I hope they all read your post!!!

    Liked by 1 person

    • Andrew Pietrzak says:

      It is indeed worrying if translators do not understand that they provide a services or two or more separate services i.e. translation, proofreading and editing. A translator does not sell to customers but provides services to clients. A service provider decides the terms. A lawyer, accountant or architect stipulate their terms and conditions of service provision. If one is a freelancer then one determines the level of the fees that one charges. Fees are charged for services and paid by clients. The legal relationship between a producer or seller/vendor and the customer/purchaser is encumbered by many legal provisions that do not apply to service providers.
      First principle: never ever give discounts.
      Second principle: do not accept any liability exceeding the value of the assignment.
      There are other, but enumerating them might be tedious for readers.
      Vitally important issue: do you know or trust a new client?
      Asking for advance payment or advance part payment might reasonably be resisted by a new potential client. But there is no good reason why a client should be unwilling to pay interim stage payments. Why should a translator take a risk that a lawyer would not take?
      Lastly as a self-employed service provider one must have some self-respect. Nobody wins all the time but if one allows clients to push one around then one shall always lose!

      Liked by 1 person

      • Good point, Andrew. I often ask for interim payments on very large and long jobs and this is something serious clients are usually willing to do. Reasonable people understand that if we’re going to be working for them almost exclusively for a long time, we’ll need interim payments to get our bills paid on time.

        Your comparison to lawyers is interesting though. Just an FYI, many times we don’t get paid until the end of a trial, especially in countries where lawyer’s fees are allotted by the court upon ruling.

        That being said, I fully agree with your conclusion about not letting people push us around!

        Like

  2. Thank you for mentioning my silly blog post, Paula, as inspiration to you.

    It’s been a while since anybody said something like that about me.

    You might consider including also the giraffe theme in your next legal analysis of an issue that has a major influence on the translating profession. That’s what what my last post was about and it was almost as successful as the one about hotdog vendors. 🙂

    Liked by 1 person

    • I would hardly describe your post as “silly”, Steve!

      That giraffe post was great. I’ve always been a big fan of giraffes as well, but my reasons were much less profound: I just like how they always look happy and friendly. Maybe the reason they always look like their smiling has something to do with knowing where all the juicy stuff is. 😉

      Like

  3. All of this is platitudes. The truth is that translation agencies make translators sign ridiculous contracts and if the translator and the service-provider are in different countries, the contract is not worth the payer it is written on. I was recently asked to do a translation by someone from an agency who claimed to be in Singapore when her phone number was clearly that of the Phillipines! She sent me a two-page contract written in 6-point type, so that is amounted to six thousand words and I was supposed to sign it without having seen the translation in question and without the contract actually stating the name and address of the company! She then asked me to do a sample translation, which was the first time I had seen any of the job. This was of course part of the assignment and so it would be a translation for free. Surprise, surprise, I told her to get lost. The real lesson in this to all translators, beginners or veterans is: if the terms and conditions are unreasonable, walk away from the job! Another job will turn up soon from someone who will pay a fair rate and – best of all! – will actually PAY you! By the way, I am a translator of more than 50 years’ experience and I also run an agency. Our contract with translators is about half a page long and it is headed with all our contact details. And furthermore, , we really are where we way we are – in central London, unlike a couple of agencies who use accommodation addresses in central London and are really in Outer Mongolia (or somewhere equally far from the UK’s capital).

    Like

    • Sorry you feel that way after 50 years in the business, Josephine. My experience has been radically different from yours and nobody has ever “made” me sign anything. I have also won a few battles with difficult payers abroad and can’t say I feel exploited by any of my current clients. So I really can’t relate to what you are saying at all and I hope I never can! The thing with “the truth” when extrapolated from our own personal experience is that it is not objective. Everyone’s experience is different. Your experience is unfortunate and it is *your* truth, but it is not *the* truth. Some would argue there is no such thing anyway. The Law on the other hand is not subjective in the same way “the truth” is and whether you personally regard it as a platitude or not is irrelevant. It’s still there to help you out should you choose to exercise your rights and attempt to negotiate better terms.

      Liked by 1 person

  4. Thank you Paula for clearing things out so well. I would only specify that the sources of law governing a contract may not necessarily match the national laws of the translator. For example, if I, French translator, enter into a contract with a British translation agency who wrote it, the contract will obviously be governed by the common law. When identifying the sources of law governing a contract, it seems to me that a translator may focus on who, where and according to which law the contract was written. Hope I am not too confusing!

    Like

    • Absolutely! Excellent point, Vinciane!

      What’s interesting about that is that some countries reserve jurisdiction over the contract, regardless of what is stipulated in the contract or where the client is. For example, here in Argentina, under our newly drafted Civil Code which comes into effect in August of this year, if the contract is a contract of adhesion (and most NDAs are), Argentina reserves jurisdiction and grants its citizens the right to file for suits locally regardless of what it says in the agreement. I’m very interested in seeing where this goes in actual practice, being as that can be construed as affecting sovereignty and other pertinent principles.

      Like

      • That is a very interested point Paula! Here in France, when it comes to contracts, courts tend to favour what parties agreed on. In particular, when judges need to interpret a lack in a contract, they would seek the parties intentions, what they aimed for.

        Liked by 1 person

    • Any sort of international contract, such as almost all of us enter into at some point in our professional lives,should contain a clause (usually right at the end) saying which law shall be used to interpret the contract (and often which courts shall be competent to hear any disputes). But the more fundamental point, in both civil law and common law jurisdictions, is that a contract should reflect an agreement between two (or more) parties. Whenever you receive a contract from another country, and a fortiori from across the civil law/common law divide, you need to pay attention to what the other party expects from you as well as the exactly legal wording used.

      Like

      • That’s an interesting observation, Nigel. I was thinking of the classic “work for hire” versus “literary translation” distinction when I wrote this post. The question of who owns IP rights is a bit more complicated, as you obviously know, especially under civil law traditions, which is why I decided to leave it for a different post.

        Like

      • [not sure if this reply is going in the right place, but anyway!]
        Most American translators don’t realise this, but even under U.S. “work for hire” law, they only lose their copyright if they specifically agree to it. The situation in other common law jurisdictions (which have usually derived their copyright law from the UK Copyright Act 1911) is even more favorable for translators. But of course initial ownership of copyright is only one aspect of the problem of IP rights, and this issue is so wide that we should probably discuss it further on another post.

        Liked by 1 person

      • That’s true. In the US you don’t lose copyright unless you waive it. In some civil law countries, like mine, things work a little differently depending on the kind of translation you’re doing (for example, “sworn public translation” is subject to its own individual laws down here). Copyright is a fascinating and complex issue. Thanks for bringing it up and sharing this link!

        Like

      • Nigel, I could not agree more! Especially concerning what you said about a contract reflecting an agreement between parties: it is actually not less than the main definition of the contract, its core principle and the first thing I learnt in civil law class!!

        Like

  5. As I’m sure you’re aware Paula, *all* translations are subject to intellectual property law (especially copyright), and in various ways. This is an issue that is far too often ignored by both translators and clients alike. Over half of my clients would be in danger of being up the proverbial creek without a paddle if I hadn’t kindly supplied the appropriate written licence and subsequent assignment on my invoice 😉 Maybe I should blog about it (will let you know if I do).

    Like

  6. Hi,
    Just wanted to add how little translators seem to worry about their own intellectual property when it comes to translation memories (TMs). I tried to revive an old thread entitled “Who owns the translation memory” on the world’s largest translation platform, but hardly anyone can be bothered to comment. By signing TMs over (returning them) to agencies based on NDA s or other contracts worded by translation agencies’ lawyers, the translator really signs away his or her intellectual property contained in the TM (which the agency assumes will be delivered in updated form – after the translator has of course included new information based on the new translation – and never be used or disclosed again by the translator, just like the actual target text). However, in my view, the TM must be considered a separate entity; it’s not part of the translation; on the contrary, it’s a separate unit that can, via CAT tool, be used for future work, either by the same translator or by other people if the translator gives it to them or if these other people “create” a TM from the source text and the matching target text, which the translator created. It’s not like re-using the target text in its final readable form, no; one uses bits and pieces from the TM that one created.

    To the translator:

    In this age of many contents out in cyber space, your own particular target-text phrases, which you came up with and which are included in your TM, should not be something freely available to or usable by anyone. It’s like giving expert knowledge and IP away for free. Using it again doesn’t mean you or the user violate any confidentiality with regard to a very specific target text you created (usually a self-contained, finite text), but instead, the user reuses certain phrases from a TM that will be suitable (to varying degrees) for the translation of other source text segments, and are hardly ever 100% matches, at least not in the fields I create a TM in (marketing, business, law). But they contain a lot of specific information you created with your knowledge that is valuable and can be of great help to you or anyone else who uses it to translate.

    Any co-use of this TM should IMO be a) paid for, and it should b) be limited to certain parties (possibly the translation agency through which you got the translation project or the end client if you are directly dealing with him/her). In any case, this topic is hardly being discussed anywhere.
    I have thought about it quite a lot and am very careful when it comes to my TMs. Having a good contract (created by YOU or in your interest as service provider) before commencing a project is important when a TM is going to be involved, and I advise against “work made for hire” stipulations. But I am a freelance translator; I am not employed by or affiliated with any translation agency.

    There is an argument that says that everything will be available on the internet anyway (as if that should apply to anything professional translators create, especially their own TMs), so why bother? Other people suggest that by “sharing” your TM, you might get new clients. No-one talks about any negative effects such as losing clients to other translators you share your info with because they will use your TM and undercut you with it (or agencies can do the same and are doing it on online server portals); and why would you really want to share your specific knowledge, contained in your mind and now in your TMs and risk losing this edge to anyone or everyone? Now, if you work in a team on a project, yes you can decide on sharing, but that’s a bit different. And everything should have a solid legal basis. Which I am sure lots of things going on with TMs don’t have. For example, when someone simply creates a TM from your work without even telling you and then reuses it.

    Let me say, I am certainly not greedy; I am simply very concerned.
    I appreciate any comments.

    B

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s