Analyzing lexical features applied in translation of legal texts, with special reference to commercial contracts

DEGREE IN ENGLISH Major: Legal English ANALYZING LEXICAL FEATURES APPLIED IN TRANSLATION OF LEGAL TEXTS, WITH SPECIAL REFERENCE TO COMMERCIAL CONTRACTS Supervisor: LL.M... For the re

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF LAW

DIVISION OF LEGAL ENGLISH

GRADUATION THESIS B.A DEGREE IN ENGLISH

Major: Legal English

ANALYZING LEXICAL FEATURES APPLIED IN TRANSLATION OF LEGAL TEXTS, WITH SPECIAL REFERENCE TO COMMERCIAL CONTRACTS

Supervisor: LL.M Pham Thi Phuong Anh Student: Do Phuong Dung

Student ID: 1352202010003

ACKNOWLEDGEMENT

First and foremost, it is a genuine pleasure to express the deepest appreciation to my instructor, Ms Pham Thi Phuong Anh for her continuous assistance of my undergraduate thesis and for her guidance, patience, understanding as well as her vast knowledge and skill in many specialized areas Without her support and dedicated participation throughout every step throughout the process, this paper would never have been accomplished In addition to my instructor, I would like to thank other members of my thesis committee: Ms Phan Le Chi, Mr Nguyen Thai Son and Ms Tran Ngoc Luong Tuyen for their encouragement, tough questions and insightful comments on my thesis

My sincere thanks also go to Hung Anh Ltd., Co as well as Baker & McKenzie (Vietnam) Ltd., Co., for offering me internship opportunities in their companies, and permitting me to work

on diverse and exciting projects, especially legal translations They have contributed invaluable practical knowledge and memorable experiences, allowing me to gain skills in what I hope will

be my future career

Additionally, getting through my thesis required more than just academic support I would like to express my sincere gratitude to my friends who supported me and provided me with strength and encouragement, as well as their valuable friendship which helped me get through many long nights during the difficult process of research, writing and rewriting Most importantly, obviously none of this could have happened without my family I am forever grateful to my parents for supporting me spiritually throughout my life Their love and constant encouragement has helped me overcome all the stresses during these last three months

TABLE OF CONTENTS

INTRODUCTION 1

1 The Urgency of the Thesis 1

2 Literature Review 2

3 Research Objectives 5

4 Research Subjects 6

5 Scopes of Research 6

6 Research Methodologies 6

7 Research Structures 7

CHAPTER 1: OVERVIEW ON LEXICAL FEATURES IN LEGAL TEXTS 8

1 Overview on lexical features 8

2 The importance of lexical features in legal texts 9

CHAPTER 2: LEXICAL FEATURES IN COMMERCIAL CONTRACTS AND RELEVANT PROBLEMS UPON TRANSLATING COMMERCIAL CONTRACTS 12

1 Technical terms 12

1.1 Purely technical terms 13

1.2 Semi – technical terms or common words with uncommon meanings 14

2 Archaic words 16

3 Use of “such”, “the same” and “said” 20

4 Foreign or borrowed words 23

4.1 Latin words 24

4.2 Borrowed words from French 27

5 Use of the modal verbs of “shall” and “may” 30

5.1 Use of the modal verb “shall” 30

5.2 Use of the modal verb “may” 32

6 Lexical repetition 35

7 Synonyms 36

CONCLUSION 43

INTRODUCTION

1 The Urgency of the Thesis

Globalization is increasing and as a result Vietnam has become more and more engaged

in the global economy, especially with its participation in the World Trade Organization (WTO) However, for Vietnam to remain competitive it is necessary for us to interact and communicate with other countries of the world by using a common means It is obvious that English is the most popular and thus the preferred language used in international business Therefore, the capacity for English comprehension is a must when practicing in the international environment Furthermore, when we usually have to enter into international contracts, the majority will utilize the English language, especially in commercial contracts It is noted that commercial contracts are becoming more and more necessary worldwide and for Vietnam in particular

However, due to the fact that Vietnamese lawyers are usually just familiar with Vietnamese legal systems as well as drafting legal documents mainly in the Vietnamese style, it

is difficult for them to read and clearly understand documents, contracts, etc in English It should be noted that according to Article 70 of the Amended Law on Lawyers Vietnam No 20/2012/QH13 dated 20 November 2012, issued by the National Assembly foreign lawyers are not allowed to be involved in court proceedings in Vietnam, but are still allowed to provide legal consultation services, including drafting commercial documents and contracts for clients when required Thus, in order to solve international legal problems, lawyers must depend on translators

to help them express their words precisely This creates a great opportunity for translators, especially legal translators who possess good knowledge of both English and legal English To obtain this specialized legal knowledge requires translators to engage in years of study

Unfortunately, the teaching of legal English is still limited in colleges and universities in Vietnam As a result, the number of Vietnamese translators who have met the proper professional qualifications is humble Smith (1995) explains that:

Three prerequisites exist for successful translation of legal text First, translators must acquire a basic knowledge of the legal systems, both of the source as well as of the target languages Second, they must possess familiarity with the relevant terminology Third, legal translators must be competent in the target language’s specific legal writing style (p.181)

In fact, although other features of the legal language such as syntax, pragmatics and style all play an important role in legal texts, lexicon of the particular written or spoken communication is the most visible and important feature of legal language This is something that a translator should pay much attention to because it helps the translator easily decode the source texts and translate them into actual, less ambiguous words and phrases, thus making it easier for receivers to access the target language

For the reasons above, the topic: “Analyzing lexical features applied in translation of

legal texts, with special reference to commercial contracts” is chosen as the title of this thesis

In fact, he concentrated on the relationship between lexicon and syntax, not each element separately Therefore, it can be somewhat difficult for legal translators to differentiate between the two elements

Tiersma (1999) is among the scholars who have written the most informative and detailed

clarification of lexical features in his book “Legal Language” He divided each feature and put

them into appropriate categories, which helps translators take an easier approach He even evaluated these features in legal text and provided solutions for the problems of each lexical feature His work contributed to the thorough and comprehensive understanding that translators have when they deal with various types of contracts

Mellinkoff (2004) who first systematically studied legal English, showed his appreciation

of the significance of the language of law as well as the history of legal language, and incorporated them into practice In his work, he also noted some characteristics of the language

of the law, but he focused on the use of the specialized jargon that distinguishes lawyers from non-lawyers

Meanwhile, Alcaraz and Hughes (2014) with their book named “Legal Translation

Explained” have provided more knowledge of “the identification and solution of problems that

actually arise in this area of translation” The authors have indicated the problems that translators may come across concerning various types of lexical features This book is particularly valuable for any translators struggling with legal translation in respect to contract understanding and ways

to deal with problematic matters in practice Though their work also separates and analyzes each feature, it is still not clear to easily recognize and distinguish which feature is lexical

Cao (2016), who has been involved in translating legal concepts for a significant amount

of time, has researched, gathered data and then analyzed the subject matter It is noteworthy that

she has built a bridge of understanding between languages by illustrating the difficulties in

translating private legal documents Chapter 5 in her book “Translating Law” is dedicated to

“linguistics features of major private legal documents in English are examined with regard to translation” (p.6) In the section on lexical features the author’s main concern is just one feature

of legal English, that is, word strings (the use of redundant synonyms) In her work, Ms Cao clarified the use, history and problems regarding the translation of word strings The lexical features here are incorporated into word strings with an explanation to aid in the understanding

of the style of English legal documents as they convey the meaning of all-inclusiveness However, despite her work and the information provided in this section, it may still be difficult

to distinguish different lexical features

Additionally, there have been a variety of articles written in international journals on the study of lexical features of legal English Although many of the authors are linguistics experts and not legal experts, their works generally furnish an understanding of lexical features, providing practical illustrations by studying the differences between their native language and English, and offer suggestions if any problem arises What they accomplished is also one of the objectives I want to achieve through this thesis

Nevertheless, in Vietnam, there is little material or references regarding legal translation,

as this field is relatively new, regardless of its necessary for society The study of legal translation is conducted mostly by language experts and their work usually is in the form of journals, theses, or personal experiences shared on the internet Specifically, Tran Huu Hai (2010), who has analyzed the issues encountered in the translation of legal texts between English and Vietnamese He highlighted these problems and difficulties in legal translation and compared legal terms in Vietnam with their English language counterparts Although he only

makes a limited approach to translation practice, his article in fact contributed to a field of research that has been neglected by Vietnamese translators Additionally, Nguyen Phuoc Vinh

Co (2013) and a group of authors: Tran Phuoc Phuong Uyen, Cap Thi Van and Ho Thi Ngan instructed by Nguyen Phuoc Vinh Co (2016) have studied about characteristics of legal English: linguistics challenges in translation Their work provided a variety of specific examples of each characteristic and they provided the Vietnamese translation for each example However, their work seems mainly focused on listing those characteristics regarding legal translation without digging deeper and just scrapes the surface of legal English In this respect, they are among the very few linguists studying features of legal English and the challenges translators face when applied in Vietnam’s environment

Basically, the authors all point out different lexical features in legal text or contracts Some even describe the problems arising out of such features, while the Vietnamese authors focused on the problems in translation between English and Vietnamese Nevertheless, while the foreign authors just note a general overview of lexical features in one area, in contrast the Vietnamese authors list all of the specific problems Due to the fact that their intentions are to give a brief analysis of each feature, unfortunately there is not much information provided in their works

3 Research Objectives

The aim of this work is: (i) to clarify lexical features applied in translation of commercial contracts; (ii) to provide a practical approach to commercial contract translation from English to Vietnamese; and (iii) to deal with the translation problems of such lexical features

The above listed tasks will hopefully facilitate translators in Vietnam when translating commercial contracts

in legal terms in respect of the semantic field in order to decide the appropriate translation strategy

In brief, the aforementioned methods are at times combined to make the readers familiarized with the thesis as well as serving to make it more organized

7 Research Structures

This thesis is divided into two chapters

Chapter 1: Overview on lexical features in legal texts

Chapter 2: Lexical features in commercial contracts and relevant problems upon translating commercial contracts

CHAPTER 1 : OVERVIEW ON LEXICAL FEATURES IN LEGAL TEXTS

1 Overview on lexical features

Legal English is the language of the law in England, the United States as well as other countries whose official language is English Gibbons (2003) said: “Every field of expertise develops its own language features.” Thus, legal English is not an exception Due to the nature and function of law, legal English has its own particular linguistic features, that is, lexical, syntactical and pragmatic features to meet the nature of the law and adapt the characteristics of law and its application

Black’s Law Dictionary defines lexical definition as “a dictionary-style definition of a

word, purporting to give the full meaning of a term.” In other words, lexical features are distinctive features of legal language, and is the complex and unique legal vocabulary found in different legal languages (Cao, 2016, p 20) In fact, this characteristic is different from country

to country due to their own unique legal vocabulary Lexical aspects, along with other features, contribute to the distinctive characteristics of legal texts Generally, legal English’s vocabulary is formal and standard and in compliance with the standards of the style to the highest level due to the strictness of law It is supported by the existence of literary language without the appearance

of informal expressions These fundamental lexical features are among the characteristics that draws the unique picture of legal English

To help identify some lexical features, R Hiltunen (1999) clarified “the changing perspective of legal English vocabulary comprises archaic, technical and foreign words and phrases, as well as binominals.” Like R Hiltumen, Mellinkoff (2004), Danet (1980), Bowers (1989) and Tiersma (1999) have similar classification that “the English legal lexicon is full of

meanings and words of over-precision, among others.” (Cao, 2016, p 21) Garner (2002) had different divisions and considered some words to be a type of legal prose: fancy words, vague words, euphemisms, timid phrases, empty dogmatisms and neologisms Thus, this thesis will mainly follow the classification of author R Hiltunen as this is accepted by many authors listed above

2 The importance of lexical features in legal texts

According to the famous English judge Lord Mansfield, “…most of the disputes in the world arise from words…” He meant to impress the importance of lexical features as the most obvious and significant linguistic features of legal language and as a technical language Consequently, its importance is demonstrated as follows:

First of all, it is generally acknowledged that in order to learn a new language you have to first know the vocabulary of that language and then study how to use it to make a sentence or a paragraph, etc Vocabulary is very important as you approach a new language Thus, there is no doubt that lexical features are important when studying the legal language used in contracts However, this also creates one of the main problems when translating a legal document: there is very little crossover when it comes to cross-border legality Most of countries in the world are ruled by law and have their own legal systems Legal systems are representative of their societies

as they were first established Each society has its own unique culture, history and evolution so each translation must be conveyed precisely in the target language Failing to do so will create legal consequences and even the slightest mistake will involve a complex legal process, including potential financial loss, even if it is reversed For example: for the word “authorize” in

a resolution, it may be translated into Vietnamese as “uỷ quyền” or “cho phép” However, it should be translated as “cho phép” instead of “uỷ quyền” because using “uỷ quyền” may trigger

a request for the Power of Attorney (Giấy Uỷ Quyền) As a result, legal translators should have the crucial experience and knowledge of legal terminologies of both the source and target languages An international lawyer will rely on a translator to have foreign documents translated into his own language to deal with international legal matters

Secondly, in the world of the law, there some terms considered as “untranslatable terms.” These terms are used when words or phrases are specific to the law of one country or one legal system and not to another, making it very difficult for legal translators to know their true meanings Also, there are other terms which have completely different meanings in different countries An example of this is the term “liquidated damages,” which is used in common law systems However, its problematic when translating into Vietnamese because there is no equivalent term in our legal system While this term is common in the U.S and the U.K., it would need a lengthy clarification to be understood in Vietnamese

Thirdly, “for the sake of preserving the letter of the law, the main guideline for legal translation was fidelity to the source text” and “fidelity to the original text must be the first consideration” (Sarcevic, 2000, p.16) In fact, the translator’s task is to convey at least the content of the source language as closely as possible Once translated, a legal text must remain faithful to the original text based on its true meaning Any nonconformity with the source text can cause a legal document to be ineffective, showing gaps that do not exist and delivering a completely different meaning Therefore, legal translation must be consistent, objective, well-adjusted and representative of the source text Translations in legal texts need to be legally precise rather than just literal, keeping the intention of the original author, both in meaning and strictness of tone Thus, the translation requires a degree of relevant localization for the target audience

Generally speaking, for the reasons above, lexical features of commercial contracts play

an important role in translation of contracts because they reflect most of the intentions of the drafter and meaning of the contracts If it becomes misunderstood, the consequences may cause unrecoverable and unexpected damages to the parties concerned This not only makes it extremely difficult for laymen to understand but also for legal professionals to deal with Translators now have to place even more weight on lexical features in order to comprehend and convey the meaning of the contract as precisely as possible into the language of clients

CHAPTER 2: LEXICAL FEATURES IN COMMERCIAL CONTRACTS AND RELEVANT PROBLEMS UPON TRANSLATING COMMERCIAL CONTRACTS

1 Technical terms

It is common knowledge that in each profession there are technical words that are unique

to such professions There is a group of words that have specialized meanings, rather than the meanings they have in the daily non-specialized use This is one of the most difficult aspects for legal professionals in general and legal translators in particular to familiarize themselves with due to the dissimilarities in legal systems In the legal field, technical terms have their own special implications and expansions in legal point These words are used regularly to express complex concepts concerning the legal field in a way more abridged than non-specialty words are, and often there is no replacement for these terms One of the very first and most significant lexical features of legal English used in commercial contracts is technical terminology As Tiersma (1999) has pointed out:

If a word or a phrase is used exclusively by a particular trade or profession or if that profession uses it in a way that differs from its normal meaning and term has a relatively well-defined sense, it should be considered a technical term (p.108)

Like Tiersma, Schauer (as cited in Cao, 2016, p.16), a legal philosopher noted “Legal language as a technical language often operates in a context that makes legal terms have meanings different from those they bear in non-legal contexts of use.”

According to Garner (2nd ed., 2002), a specialized and technical vocabulary is the first and most obvious way to regulate a domain of social experience or activity, the employment of technical terms is another marked feature of contracts It is realized that there are obvious

technical terms which are broadly used in contracts Additionally, Alcaraz and Hughes (2014) classified legal terms into two categories: purely technical terms and semi-technical terms

1.1 Purely technical terms

Guanqi (2014) noted that contracts fall into the variety of legal documents, which covers

a wide range: statutes, decrees, legal provisions, economic contracts, commodity warranties, deeds of trust, insurance policies, wills and testaments, leases and installment plans, etc Thus, it

is obvious that there are some terms that are used solely in the legal field, especially in contracts that are found nowhere else

Some would argue that the terms that are in close connection with one’s legal system should not be translated, but adopted This argument has a point but it should be noted that when English commercial contracts are being translated into Vietnamese, the translators, in fact, need

to translate all of the words in the contracts This has to be done even though there is no equivalent term in Vietnamese (the target language) or if the terms are difficult to translate, except for the information pertaining to the parties (name, address, etc.) When translating, Vietnamese translators have to bear in mind the concept of fidelity so that they must express the actual meaning of the term

I will use the example of the term “liquidated damages” again In Vietnamese law, we do not have a remedy called liquidated damages, thus, it is problematic to translate this term

According to Black’s Law Dictionary, the remedy of liquidated damages is an amount

contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches If the parties to a contract have properly agreed on liquidated damages, the sum fixed is the measures of damages for a breach, whether it exceeds or falls short

of the actual damages Therefore, due to the fact that there is no provision under current

regulations of Vietnamese law on the so called liquidated damages, it is translated into tiền bồi

thường thiệt hại được ấn định trước trong hợp đồng as it renders the core meaning and expresses

the nature of this term

Purely technical terms are vital terms in the context they appear in so that the remainder

of the text cannot be understood if such terms are not translated correctly, so word choice in translation is very important in order to convey the true meaning of these technical terms Nonetheless, once the translator knows the meaning behind the term which is the hardest part, translation is “a piece of cake” Additionally, these terms can be easy for translators to deal with because they are distinguished from other terms and are unique in the semantics they carry within their particular application field

In general, technical terms, which are usually more concise and comprehensive than technical terms They are crucial in contracts because they directly communicate in their meaning This helps to not only protect against any uncertainties and misunderstandings, but also prevents a level of formality

non-1.2 Semi – technical terms or common words with uncommon meanings

Unlike purely technical terms, semi – technical terms are words or phrases belonging to the daily lexicon but have additional meanings in legal texts In this case, these words are used for their special meanings, not for their common meanings Melinkoff (2004) also mentioned these terms but with a different name, that is, common words with uncommon meanings He further stated that “nothing serves better to mark the gulf between the language of the law and the common speech than a listing of common words that mean one thing to the eye or ear of non-lawyer, and may mean something completely different to the lawyer.” (Mellinkoff, 2004, p.11) Therefore, these terms are polysemic which creates a big challenge for translators to recognize

and choose the accurate meaning The number of these terms is increasing more and more to satisfy the needs of today’s society In addition, due to the complexity of semantics as well as common issues such as ambiguity, connotation, synonymy and context-dependence, translators often find themselves in tough situations due to a wider range of choices to precisely render these terms

For example, with the following paragraph:

The Mortgagor shall not create or accept, or permit to exist, any pledge, mortgage or any encumbrance with respect to any part of the Secured Asset unless otherwise consented in writing by the Security Agent and be subject to the terms and conditions acceptable to the Security Agent

(Bên Thế Chấp không xác lập hoặc chấp nhận, hoặc cho phép tồn tại, bất cứ cầm cố, thế chấp nào hoặc bất cứ biện pháp bảo đảm nào đối với bất cứ phần nào của Tài Sản Bảo Đảm trừ khi được Ngân Hàng Đầu Mối Nhận Tài Sản Bảo Đảm đồng ý khác đi bằng văn bản và còn phụ thuộc vào các điều khoản và điều kiện có thể được Ngân Hàng Đầu Mối Nhận Tài Sản Bảo Đảm chấp nhận.)

As shown in the translated version, the word encumbrance is not understood as its common meaning which is a person or thing that prevents somebody from moving easily or from

doing what they want (Oxford Advanced Learner’s Dictionary) Likewise, in this paragraph, encumbrance means a claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest (Black’s Law Dictionary)

In conclusion, translators when translating legal texts should understand the different types of terminology they are dealing with With regard to common words, translators are

entrusted to render an accurate meaning of these words and within legal contexts In case they encounter technical terms, they should ask for advice from legal professionals such as lawyers and study similar legal texts in order to achieve the best results In addition, they should attempt

to comprehend the lexical substances conceptually rather than translating them literally, or they should consult legal dictionaries

2 Archaic words

Language always changes to follow the growth of society, but the language of the law is somehow outside this flow, tending to resist this change Such old-fashioned words are called archaic words According to Baker, archaic words are regarded as “the frozen pattern of languages which allow little or no variation in form” (Baker, 1992, p.63)

Although archaic words are used less than other terms, we cannot deny archaism is one of the remarkable features of legal English in legal texts As Crystal & Davy (1969) noted “It is especially noticeable that any passage of Legal English is usually well studded with archaic words and phrases of a kind that could be used by no one else but lawyers” In fact, the preferable use of archaism in the legal context of lawyers is explained by Gibbons (2003) who stated, “these archaisms enable clearer and less ambiguous reference and give greater weight and authority to the language” In other words, extensive use of archaic words satisfies the need of conservatism and convenience of the contract because it is not only renders a strict formality, but condenses the language of the contract and prevents it from any repetition or ambiguity Overall, they are used for precise reference to the documents or its parts and to the parties of contracts

Another reason for this trend is the history of the English language Archaic words originated from the old use of Old English or Anglo-Saxon words and Middle English words used in legal English since the Norman Conquest in 1066 AD Old English or Anglo-Saxon is a

West Germanic language and it is close to Old Frisian – which is known as the initial form of spoken the English which was also written by the Anglo-Saxons and their descendants Middle English, which was developed in the late 11th century, was the version of the English language used in England during the High and late Middle Ages It is unquestionable that modern English

or general English, is strongly influenced by Old English and Middle English Nonetheless, a large amount of legal English still retains the use of Old English and Middle English words and their meanings Moreover, the countries where English is the official language usually have Common Law System, which applies in case law

Here, case law refers to the set of reported judicial decisions from a variety of courts including selected appellate courts and other courts It is well known that precedents play a vital role in the Common Law System Many of these precedents came from the Old English or Middle English ages but even today these precedents are still strictly respected by judges Many

of these precedents were made in Old English or Middle English ages Many of these precedents are still used in legal practice today, with some of them retaining their strong influence on legal language These aforesaid reasons guarantee the frequent use of archaisms in legal texts

Most of the archaic words are compound adverbs, which are usually formed by adding

after such words here, there, where one or several prepositions such as after, at, by, from, in, of,

to, under, or upon to create new words These words include herewith, herein, hereinafter,

hereunder, therein, thereinafter, thereto, whereas, whereof, whereby and wherein, etc It is easy

to recognize the appearance of such words in all contracts Due to their unusual format, they are easily recognized in contracts Notwithstanding their format, it is not difficult to translate them They are beneficial as they are used to replace a longer phrase as well as help to avoid repetition

Basically, here means this document – the one you are reading and there means that

document – the one which is being discussed Therefore, when applying this rule, there are some

basic meanings of these terms: hereby means by this means or by reason of this; hereof means of this; hereto means to this contract; herein means in this; hereunder means under this; hereinafter means later in this contract; therefrom means from that; thereof means of that; thereunder means under that, etc

Another use of compound adverb is in the use of Where words, especially when whereas

is used in recitals It has a meaning that is not a contradiction but means in consideration of or considering Whereby used with the word “witness”, means in the sense of testimony by signature, oath, etc., as in “In witness whereof,” which means to provide formal evidence of something

By way of illustration, here are some examples contained within the sentences below that show the use of such words (which are underlined) along with their translation into Vietnamese:

1 The Mortgagor and the Mortgagee are hereinafter collectively referred to as the "Parties"

and individually as a "Party"

(Bên Thế Chấp và Bên Nhận Thế Chấp cùng với nhau sau đây được gọi là "các Bên" và gọi riêng là "Bên".)

2 It is one of the conditions precedent to utilization of the Facility as agreed under the

Facility Agreement that the Mortgagor and the Security Agent enter into this Agreement

on the terms and conditions set out herein

(Một trong những điều kiện tiên quyết đối với việc giải ngân Khoản Tín Dụng theo như được thỏa thuận trong Hợp Đồng Tín Dụng là Bên Thế Chấp và Ngân Hàng Đầu Mối Nhận Tài Sản Bảo Đảm ký kết Hợp Đồng này theo các điều khoản và điều kiện quy định trong Hợp Đồng này.)

3 IN WITNESS WHEREOF, the Parties have caused three (3) copies of this Agreement to

be executed in person or by their duly authorized representatives Each Party keeps one (1) copy

(ĐỂ LÀM BẰNG CHỨNG, các Bên đã đích thân ký hoặc cử người đại diện theo ủy quyền hợp pháp của mình ký vào ba (3) bản Giấy Ủy Quyền Không Hủy Ngang này Mỗi Bên giữ một (1) bản.)

4 The Attorney-in-fact may at any time and from time to time delegate by contract of

mandate or in any other manner to any person all or any of the powers, authorities and discretions which are for the time being exercisable by the Attorney-in-fact under the Capital Contribution Mortgage Agreement in relation to the Secured Asset or any part thereof Any such delegation may be made upon such terms (including power to sub-delegate) and subject to such regulations as the Attorney-in-fact may deem fit

(Bên Được Ủy Quyền có thể vào bất cứ thời điểm nào và trong từng thời điểm ủy quyền, dưới hình thức hợp đồng ủy quyền hoặc theo bất cứ hình thức nào khác, cho bất cứ người nào tất cả hoặc bất cứ quyền hạn, thẩm quyền và quyền quyết định nào trong các quyền hạn, thẩm quyền và quyền quyết định mà Bên Được Ủy Quyền có thể thực hiện vào lúc

đó theo Hợp Đồng Thế Chấp Phần Vốn Góp liên quan đến Tài Sản Bảo Đảm hoặc bất cứ phần nào của Tài Sản Bảo Đảm Bất cứ sự ủy quyền nào nêu trên có thể được thực hiện theo các điều khoản (kể cả quyền ủy quyền lại) và phụ thuộc vào các quy định mà Bên Được Ủy Quyền xét thấy thích hợp

Apart from the obvious adverbs mentioned above, there are also other types of archaic words that can used as: verbs (darraign) and nouns (surrejoinder) and adjectives (aforesaid and forthwith, said) However, this thesis will discuss the use of archaic words as adjectives in the

following section and regarding verbs and nouns, they are not discussed in more detail, but instead are listed here due to the fact that they are not as common

Moreover, there are other archaic terms belonging to a formal style of writing that are used by lawyers that are called legalisms and lawyerisms These terms include: pursuant to (under, in accordance with), prior to (before), subsequent to (after) (Hiltumen, 1999, p.149), all

of which are also used frequently in legal texts

Despite the helpfulness of archaic words, their use is still controversial It is quite clear that certain archaic words can actually make understanding a contract more difficult for a layperson Ordinary people may have difficulty with comprehension of these words, as the parties affected by the contract are usually laymen with little legal background There have been recent recommendations to delete those terms and replace them with more common terms such

as using below instead of hereinafter, in this Agreement instead of herein and before instead of

prior to or anterior to However, archaic words emphasize the important role of lawyers and

translators because they have to be consulted for advice as these words pertain to understanding the contract clearly and thoroughly

Therefore, when translating archaic words, translators should find words that have nearly parallel meanings in the text language or they could use paraphrasing in order to clarify the meaning of such archaic words In the case of adverbs, they could use repetition as I illustrated above Always remember the main task of a translator is to not only provide the meaning of the contract but also provide transparency for the readers so there are no misunderstandings

3 Use of “such”, “the same” and “said”

One of the remarkable features of a contract is that such words like “such”, “the same” and “said” are used everywhere Their usage is quite different from their usual meanings

With regard to the word “such”, in English generally “such” can be combined with an adjective and a noun to show extremes Another use of “such” is that it can also be combined with judgmental nouns for emphasis Both forms are usually used in exclamations For example,

1 She has such a beautiful voice!

2 You are such a hot face! You have so many followers on Facebook

Moreover, “such” can be combined with “that” to show extremes which leads to certain results For example, She has such a beautiful voice that she became one of the most famous singers in the world

However, in legal texts, "such” is used in different way It is used as an adjective and means “of this or that kind or that or those or having just been mentioned” For example,

The Mortgagee may, at any time delegate by power of attorney to any person or persons,

or fluctuating body of persons, all or any of the rights, powers, authorities and discretions vested in it by this Agreement Any such delegation may be made upon such terms (including the power to sub-delegate) and subject to such conditions and regulations as it may think fit and subject to applicable law

(Bên Nhận Thế Chấp có thể vào bất cứ thời điểm nào, bằng giấy ủy quyền hoặc cách thức nào khác, ủy quyền cho bất cứ người hoặc các người nào, hoặc một nhóm người luôn với

số lượng thay đổi làm Người Đại Diện hoặc những Người Đại Diện của Bên Nhận Thế Chấp, tất cả hoặc bất cứ các quyền, quyền hạn, thẩm quyền và quyền quyết định đã trao cho Bên Nhận Thế Chấp thông qua Hợp Đồng này Bất cứ sự ủy quyền nào nêu trên đều

có thể được thực hiện theo các điều khoản (kể cả quyền ủy quyền lại) và phụ thuộc vào các điều kiện và quy định mà Bên Nhận Thế Chấp có thể xét thấy phù hợp.)

Here, such delegation means this specific delegation We can realize that “such” performs the role of “this” in this situation Additionally, use of “such” in the phrases such terms and such

conditions is rather confusing and dissimilar from its normal use when used along with plural

words while it reflects the meaning of “this” and “that” Another note in this respect is that sometimes in the legal contracts, “such” may be used just out of habit by some lawyers or drafters with no intention of reference The task of the translator in this case is to find out if there is any reference for “such” in an earlier part of the contract and then choose to translate subject to the person or thing referred to, and if not, just ignore the appearance of “such” in the paragraph and not translate it if it carries no meaning

With regard to the words “the same,” and “said,” they refer back to a person or thing that had been fully introduced earlier in the text (Tiersma (1999, p.90) In theory, these words may be more precise than “this” because “this” can both express a specific antecedent in the previous text and refer to something outside the text However, in practice, within legal text, “this” functioned the same as “the same,” and “said” meaning that there is no possibility to refer to anything outside the text

Tiersma (1999) argued that:

The legal profession’s long retention of said, aforesaid, same and such cannot be justified

adding precision or clarity to the text A drafter who wants to clearly refer to a noun that has

been introduced previously can do so in modern English by the use of the deposit, or if necessary, the above-mentioned deposit or the above deposit This or that is a better choice than said or such And it will usually replace the legal sense of same There is no need for

these anachronisms" (p.91)