written by Paula Arturo
In 2016, I conducted a somewhat small and informal online survey about translation contracts and I was astounded by the results. My survey revealed that 48.7% of responding translators regularly did business without a contract. As a lawyer, the idea of professionals providing any service without the backup and protection of an ironclad contract is simply frightening. But human beings are rational, so I figured there must be a good explanation as to why freelancers are taking such huge and widely unnecessary risks.
So, I did some asking around. The most common explanation I got from freelance translators for not protecting their businesses with a contract was that lawyers are expensive; apparently, most respondents felt that the risks involved in translation transactions was too low to justify the cost of legal protection. Of course, as a lawyer, I know that nothing could be further from the truth! But how can I help others see and understand that?
One way is by raising awareness. Another way is by making my legal skills easily accessible to those who need them most at prices they can actually afford. The latter relates to access to justice, which is a basic human right that I take very seriously. Both are the reasons why I joined The Biz Muses and why I’m writing this informative article. When it comes to agreements between willing parties, a common misconception (stemming from the concept of freedom of contract) is that pretty much anything goes. That is just plain wrong. While, in most countries, freedom of contract may restrict governments or other authorities from overstepping their boundaries when it comes to freely and mutually convened agreements, contracts are still limited by law. So, if the performance, formation or subject-matter of an agreement is against the law, the contract itself is illegal (Atiyah 1981). In other words, not everything goes!
In every area of contract law, what’s legal and what’s not depends on many things, such as applicable law and jurisdiction. Translation is no exception to that rule and translation contracts are far more complex (and fascinating!) than they seem. If you think that all that’s at stake with translation contracts are deadlines and rates, you’re dead wrong. The truth is that translation contracts govern sophisticated relationships that may cross over jurisdictions or country borders, and often even involve third parties and multiple related contracts. Contracts are a key element of any business transaction, and that includes translation.
Translation as a Service
From the legal point of view, the contract pie is divided into three parts: contracts for the sale of real estate, contracts for the sale of goods and contracts for the sale of service. Translation falls under the latter category. But translation is not just any kind of service. According to the United Nations International Standard Industrial Classification of All Economic Activities (ISIC), translation is a “specialized professional, scientific and technical activities [that] require[s] a high degree of training, and make[s] specialized knowledge and skills available to user” as “service activities […] for which more advanced professional, scientific and technical skill levels are required” (emphasis added). Therefore, it must be legally protected as such. How? With an ironclad service contract or Terms and Conditions of Service.
Terms and Conditions
When asked “Do you have your own Terms of Service” an astounding 64.1% of translators answered “No.” Although I can understand why some professionals are a bit apprehensive of contracts, the benefits of having a solid contract outweigh the hassle or cost of having one drafted. You need a strong contract, if anything, for the following reasons:
1) Protecting your business: Contracts provide a description of responsibilities that both parties will be legally bound by, that includes their duties to each other, securing payment, and providing recourse if the relationship falters in any way. Without a contract, you are unprotected. If the relationship goes sour, no matter what the reason, without a contract, you have no way of exercising your rights. It’s just your word against that of the non-compliant party.
2) Covering or altogether circumventing attorney’s fees and court costs: The “smaller” the translation, the less money involved in the transaction. So, if a translator does not get paid, it may not be worth it for him or her to seek out an attorney and file suit. But, your Terms of Service can include a provision for reasonable attorney fees whereby the prevailing party is awarded his or her attorney fees and costs. Meaning that if you win, the non-complying party not only has to pay you, but they also have to pay your attorney’s fees and court costs. This creates a legal incentive to pay, by making it riskier for your clients not to do so. In addition, your Terms of Service can also include faster, cheaper, and more effective alternative dispute resolution. For example, some translators’ associations provide arbitration in case of non-payment, and that can be stipulated in your contract, giving you an easy, lawyer-free solution to solving payment-related issues.
3) Warding off deprofessionalization: Deprofessionalization often results from the notion that no special qualifications are required to do a certain job. Widespread misconceptions about bilingualism and translation, combined with a complete lack of entry barriers to the profession and misrepresentations about advancements in machine translation, among other similar trends, all contribute to the deprofessionalization of translation.
A well-drafted contract that takes into consideration all the complexities and nuances involved in a translation transaction. It helps increase the client’s perceived value of the service being rendered. In addition, it creates awareness about what separates professional translators from amateurs. In other words, it helps counter the trend toward deprofessionalization.
Whether you’re among the 64.1% of translators who don’t have their own Terms of Service, or you have Terms of Service and want to update them, the Biz Muses can help you. So, drop us a line!