Legalese 5

[TheRambler]

Can you help me translate this paragraph to English?

Neither the waiver by a party hereto of a breach of, or a default under, any of the provisions of this Contract, nor the failure of a party on one or more occasions, to enforce any of the provisions of this Contract or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default, or as a waiver of any of such provisions, rights or privileges hereunder.

As I understand it, I can't quit this contract.

 

[tgreer]

It essentially declares that if someone screws up once and no one acts upon it, that lack of action doesn't imply FUTURE screw-ups aren't actionable.



Thomas D. Greer

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[sleipnir214]

This section, I think, is merely saying:

"The fact that a clause of this contract may not have been enforced at some time in the past does not imply that that section of the contract is no longer in force."


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[CajunCenturion]

I agree with both tgreer and sleipnir214.

It means that just because you break the contract this time, or just because I let you get away with it, doesn't mean that you can break it again, or that I will let you get away it again. It means that neither contract violations, nor lack of enforcement, constitute a precedent.

==>As I understand it, I can't quit this contract.
It means you can't quit the contract by violating the contract. However, there is probably a termination clause outlined elsewhere in the contract.

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[TheRambler]

Thanks to all of you, good thing I asked. I wonder why lawyers use such language when they could have written just what you did, there is no need to confuse people.

Or maybe it's just me, as you didn't have any problem understanding that provision.

 

[strongm]

The lawyers argument for such langauge is that it is necessary in order to remove any possible ambiguity from what is being said

 

[TheRambler]

Then in a very strange way, lawyers would be like poets. In this case however, I missed the message.

 

[tgreer]

As a poet, I resent the comparison . In fact, the poet often seeks ambiguity, a turn of phrase that can mean many things at once.

Thomas D. Greer

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Training, Development & Consulting

 

[PaulTEG]

If you can't quit the contract, neither can the other party, is that a good or bad thing ?

--Paul

cigless ...

 

[TheRambler]

As a poet, I resent the comparison . In fact, the poet often seeks ambiguity,...

I'm an accomplished poet. You'd have no idea the amount of agonizing and research goes into picking the precise word, with all of the particular shades of meaning, nuance, history, allusion, and association that goes with that word (and no other).

We all know that lawyers, to use another example, take a similar degree of care in their wording.

Sorry Thomas, again I misunderstood what I read. Now I see there is a difference in purpose, while lawyers seek to remove ambiguity, poets may try just the opposite.

I appreciate your help and your posts in general, poets are my friends.

 

[tsdragon]

Isn't it interesting that in order to "remove ambiguity" they end up make the whole thing imcomprehensible (except to another lawyer)? Does that defeat their initial purpose? To me it does. If I can't understand it at all, that's worse than being able to understand it even if it is somewhat ambiguous.

Personally I think they do it for job security more than anything else. There are easily a dozen ways that same paragraph could be written to make it easy to understand and still be unambiguous, without all the legal jargon.

Tracy Dryden

Meddle not in the affairs of dragons,
For you are crunchy, and good with mustard.

 

[TheRambler]

CajunCenturion It means you can't quit the contract by violating the contract. However, there is probably a termination clause outlined elsewhere in the contract.

PaulTEG If you can't quit the contract, neither can the other party, is that a good or bad thing ?

You are right again CC, there must be a termination clause. My first attempt to translate was awful, I confused the word "waiver" with "termination".

I didn't have the whole contract, two of my colleages were given the task to translate it, but they had a hard time with that particular clause. Our CEO thought I could help and gave me just that troublesome part, but the contract must be similar to this one. I think so because I know we are dealing with a Chinese corporation; if you scroll down you will find there is a termination clause (23).

The curious coincidence is late last night a good friend came to visit and he happens to be a lawyer! So I gave him my text and he had no problem rearranging it, now even lawyers can understand it. Here is the translation in case someone is interested:

Ni la renuncia de la parte, el no pago, o incumplimiento, de cualquiera de las cláusulas del contrato, ni el no hacer o dejar de hacer de una de las partes en una o más ocasiones, para ejercer sus derechos, privilegiar, o subsanar, no constituirá en adelante un precedente para cualquier incumplimiento, o no pago subsecuentes, como tampoco renuncia a alguna de las cláusulas, derechos, o privilegios de este contrato.

Thanks every one for your help -and for the star- we have done a good job. I have learned this type of translation should be done by a lawyer, our CEO has learned he should give it to me... <sigh>

 

[sleipnir214]

tsdragon:

Isn't it interesting that in order to "remove ambiguity" they end up make the whole thing imcomprehensible (except to another lawyer)?

Have you ever watched a non-programmer puzzle over source code?



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[tsdragon]

sleipnir214:

That's true, but non-programmers and not expected to read and understand every program they buy.

People are, however, expected to read and understand every contract they sign.

Tracy Dryden

Meddle not in the affairs of dragons,
For you are crunchy, and good with mustard.

 

[sleipnir214]

tsdragon:
True, the vaguaries of software licensing keeps most users from ever having to see source code.

But on those occasions where someone gains access to and cannot understand program source code, the traditional ritual is:[ol][li]complain about one's inability to understand what one is reading[/li][li]opine that the source code's unreadability is nothing more than a conspiracy to keep programmers employed[/li][li]hire a programmer[/li][/ol]

As I see it, legalese is a jargonal set of formalisms. Our inability or difficulty reading it is more than anything a function of our ignorance of their formal systems.

Or it could be as my sister the lawyer says, "Contracts are like using a magic spell to summon a demon. Get one little thing wrong and you're going to get eaten."


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[yanqui]

All contracts can be terminated by agreement by both parties, even if the contract states that the contract cannot be terminated for any reason by any party to it. But most contracts include a clause that states in some form or other, This contract may be terminated by agreement by all parties to it, with or without stipulated penalties. And all contracts, regardless of the wording, are considered enforceable by the party in agreement with the contract. In other words, if you can prove that the other party breached the contract, they cannot enforce your end of it, and vice versa. And the contract will be ruled null and void if it can be shown that there was no meeting of the minds, in other words, if you end up in mediation or arbitration, or court, and it turns out that you thought the contract said one thing and the other party thought it said something completely different. Any part of the contract you're not clear on you should say, "I understand that this says such and such.....is that your understanding?" And if they say no, it means this other..., then you say, Okay, make the contract say what you just said.

I would hate to enter into a contract with any organization from China, because their business terms aren't the same as our business terms. I've seen it, and by the time the clarity is achieved, a lot of lawyers can get very rich.

 

[SilentAiche]

Have you ever watched a non-programmer puzzle over source code?

I don't much like being watched like that.

Tim

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[SteveGlo]

I used to work for that part of the British government that let the contracts to build the major roads in the UK. My recollection is that the clauses in the contracts were quite readable by reasonably well educated people not necessarly trained in law.

Perhaps this is one reason why the British national road network is so shambiolic?

 

[jakeyg]

Keeps the lawyers inside gainfully employed paying taxes, you wouldn't want people who think like that walking the streets would you?

 

[craigsboyd]

SteveGlo,

I had never seen 'shambolic' used before (you have a little type-o there), so thanks for that. I have my word for the day. I'm off to use it on my son, who is two years old, in reference to the living room which is currently littered with his toys. <g>

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