Have you ever wondered about those terms you are being asked to sign? Ever seen something that sent you running for the hills? I don’t know about you, but I have. Łukasz Gos-Furmankiewicz calls these “zombie contracts”, and he seems to know a bit about them. So I invited him for an interview to tell us all about them.

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Lukasz-Gos1Hi Łukasz,

You’re a highly respected English <> Polish legal translator with a way with words many native English-speakers would be proud of. On top of this, you’re a highly trained lawyer. I know you’re especially interested what you call “zombie contracts”, and I’d be delighted if you could tell us all a little more about them.

First off, I hope I gave you a satisfactory introduction, but perhaps you’d like to tell us a little about yourself and your background in your own words.

Thank you, Rose, you did me too much favour with your flattering introduction. I’ve been interested in zombie contracts for a while, though it’d be hard to give an exact explanation as to why. Since I don’t actually practice the law these days, I guess I need an outlet. Besides, they’re also interesting on an intellectual level. Plus, I take issue with these things. I wish they would just go away. I know translators don’t always understand them but are asked to, and frequently do, sign them. I want to level the field by bringing these issues into daylight. Talk about them. Explain them.

By the way, this isn’t a war on translation agencies, just in case anyone gets this sort of an idea. Agencies get asked to sign contracts too, and some of these contain really ugly stuff like you wouldn’t believe. This is intended for them, too.

 

I see. So what sort of issues are you seeing in these translation contracts?

My own personal pet peeve is the rudeness with which those contracts speak to or about the translator. More interesting to our readers, though, is probably the worrying tendency to heap all sorts of stuff on the translator, sometimes without really talking about it first. Sometimes these are things that don’t make much sense to make your responsibility rather than theirs.

 

Can you give me some examples? What sort of wording should translators be looking out for?

Other than just two or three that we’ll cover in a minute, I would specifically avoid giving you any specific catch words to hang on to. On the contrary, I want you – and this is really important – to read contracts with an open mind, realising that – to quote Ashley Cowles‘s slogan – it’s not about the text, it’s about the message. You’re looking for the sort of message about your rights and obligations that you don’t want to be read and heeded by the legal system. The message is the real danger, the words are just a tool, and various words can be used to convey the same idea.

Still, do look out for ‘satisfaction’, you can even CTRL+F it. When a job is supposed to be done to the client’s unqualified satisfaction, it means the job isn’t complete – and the deadline clock still runs – unless and until the client is happy. ‘Reasonable satisfaction’ was invented by English-speaking lawyers to alleviate the problems associated with this, so you at least want that satisfaction to be ‘reasonable’. And you probably want a very clear provision to the effect that you’re going to be paid for any additional work which does not result from a real error or some other real failure you can reasonably be blamed for, as opposed to whether the end client or someone else likes your style or not. Please note I’m not talking about a situation when you actually want to offer free rewrites until your client is subjectively happy with the text as part of your standard service,. All these things connect with your business idea, your tolerance levels and your comfort zones. Mileage may vary from one translator to the next.

Next, anything including ‘hold harmless’ (another CTRL+F candidate) and ‘indemnify’ calls for a close inspection, although it is not automatically unacceptable, in keeping with what I’ve just said about ‘satisfaction’ and rewrites. You just need to be aware of what you’re dealing with, and you’d better not have any second thoughts later.

Also, be wary of absolutes. ‘Wholly’, ‘totally’, ‘fully’, ‘entirely‘, ‘free of’, ‘none whatsoever’, ‘sole discretion’, ‘only if’, ‘solely’ and such like. Emphasised negations with inversion and similar strong forms of expression, such as: ‘no payment shall be made unless and until’ should attract your careful scrutiny. Also consider the frequency of phrasing which makes you sound like you’re a potential criminal looking to cheat the agency or client in all sorts of ways. Apart from the legal significance of wide, blanket statements (where no exceptions are stated separately, at least), do you really want to work with – or for, let’s be realistic – people who talk to you in that manner?

I want to emphasise that there isn’t really any part of a translation contract which you could just skim through, though. You need to apply the same degree of care and inquisitiveness as when you proofread a high-profile specialised translation where mistakes can cost a lot. You need to have a clear understanding of what your job is supposed to entail, what’s included in the rates you’re agreeing to receive, what the complaints procedure is if the client doesn’t like something, and what the payment terms (or even payment conditions) are. Then liability, any contractual penalties, confidentiality, laws and courts. If you think I’ve basically listed all sections there are in a translation contract, then you’re spot on.

We’re basically treading on a minefield here, and even definitions of stuff like a business day can blow up a bomb, typically in the form of a handful of weasel words that may cost you dearly. However, it can also be something which is stated quite openly and in clear terms, but people just don’t bother to read it.

Above all else, don’t be pressured into quickly signing any terms unilaterally dictated to you by your agency or client just because they say that without it they can’t pay you for work already done (which is not true, and illegal), or they won’t be able to give you any work, or they’re going to be late on something important, so can you pretty please just sign it. Don’t sign anything you haven’t carefully read and understood.

 

What kind of consequences can this have?

If you manage to put your signature under a clause which says you’re responsible for something, then you’re most probably going to end up being very much responsible for that thing, even if that’s unfair, unheard of or doesn’t make any sense. The willingness to strike down offending clauses may different from country to country, court to court and judge to judge. But you don’t want to depend on the discretion of a judge for the livelihood of you and your family. Be careful what you sign.

For example, signing a suspiciously broad intellectual property clause (or sometimes simply ‘copyrights’) can make you the sponsor of licence fees owed by the publisher to the author of the original work (book, film, article, etc.) or some other copyright holder (like a recording studio, or a larger or foreign publisher).

You could also encounter a clause requiring you to accept all complaints (valid or not), implement all corrections required by the client or a reviewer (justified or not), or resolve every complaint within a specific number of days regardless of how many words you’d need to edit. Or you could become the default handler of complaints received by your agency, even though someone else may have edited (and destroyed!) your work after you. Or sometimes sloppy corporate clients will blame the translator for errors introduced by their own staff (such accusations of errors are notably hard to defend yourself against when you’ve been required to hand over or destroy all of your files and correspondence). Speaking of which, TEP (as in: ‘should the client dispute the TEP’) means, ‘translation plus editing plus proofreading’. You probably know this already, but DTP is, of course, desktop publishing, like graphical editing and highly advanced formatting, which you don’t want to wake up being legally required to do on your own, unless you happen to actually like it and don’t mind it being included in your standard rates.

Remember that just because they didn’t bring something up on the phone or by e-mail, that doesn’t mean it isn’t there in your written contract. Or even the purchase order for an individual job. Yes, read purchase orders very carefully, too. I mean it. Every word. Twice if you need to. Purchase orders are particularly tricky because agencies expect you to adhere to them, but they sometimes also include a provision in the main contract saying that the conditions of the main contract can’t be changed by POs, or can’t be changed except in traditional writing (and POs are e-mail communication, not proper writing with signatures and so on).

 

Some people might think this won’t ever happen or it will be thrown out of any court.

Because it generally won’t happen, which is comforting, but once in a blue moon it does happen to someone, and then it hits that someone really hard. You don’t want to be that someone. You’d be surprised to see what sorts of things actually don’t get thrown out of court.

 

Have translators really been caught out like this?

As one translation blogger noted, a couple of years ago there was a Polish case where the translator had signed a guarantee saying that the client would be able to use the translated work (a book) free of any third-party claims. Turns out the publisher failed to secure a licence to have that book translated. What did those guys do? They sued the translator. And they won. After all, the translator did put his signature under, ‘free of any claims.’ So learn from that, and don’t follow in his footsteps.

Another case was when some business executives allegedly modified or updated the translation received from the translator without talking to him about it. For some reason the court apparently didn’t require the client to prove that the version containing errors, which was shown to the court, really was the version received from the translator.

I don’t know the details, but if the court really took the client’s word on that (which means anybody could bring any translation and an invoice from you mentioning the same quantity of text and claim it was your work), then, of course, the judge was way out of bounds. But there are courts which don’t delve into matters deeply. Some courts are pretty arbitrary. Some are undereducated. Some have bad days. Some just don’t understand your business.

Still, there are things that won’t fly. For example I know of a case where the client skimped on the proofreading when offered as a paid option with a translation which was going to be published and handed out to people, a leaflet or brochure. Turned out there was a typo on that leaflet, and the client sued the agency to make it pay for another round with the printers. The court did not agree.

This last case could have ended very differently if the agency hadn’t informed the client that it was a good idea to proofread and a bad idea to skimp on it. It would be safer still to inform the client that you categorically are not going to be shouldering the risks generated by the savings and low budgets, or risks which can easily be avoided by applying some reasonable precautions that are not too expensive in the grand scheme of things. What’s the cost of a reviser compared to the thousands or millions the translated transaction is worth? This is particularly important with rush jobs or jobs involving serious overtime, which carry an inherent risk resulting from the human factor – such as tiredness, loss of focus, lack of objective distance to your work, etc. In some people’s minds, by accepting a translation job from someone you should also be insuring them against all risks connected with problems they generated, not you. Such as rush jobs or poor quality sources.

(Poor quality sources are another favourite and another frequent problem, at least where English is the source language. You should generally make sure that you aren’t expected to make flawless texts out of low-quality sources, such as machine translation from another language or human translation by someone who can’t write well or barely knows the language. Non-native sources can be a real pain.)

Make sure you aren’t the person carrying the burdens and unpleasant consequences of the savings someone else while someone else reaps the rewards. It’s a bad business partnership where they take the profit and you take the risk.

Lastly, the ‘fun’ part is that probably the majority of existing standard contracts I see make at least the copyright scam possible. The typical confidentiality clause tends to expose the translator to the same risk as in the case with the (supposedly) DIY translation updates by the client’s own staff. Provisions about processing complaints are usually written in a way which makes them very prone to abuse in the hands of someone who’s determined to make your life unpleasant or just in a malicious mood.

 

Can liability insurance help in these cases?

Yeah, but there are limits. Above the insurance pay-out limit (total or aggregate, or per event), you’re on your own. And insurers aren’t exactly looking forward to having to pay, either. Also, insurance policies can sometimes impose very high requirements of diligence, which you may be required to prove that you observed at all times, and this may be impractical. For example, lawyers could start looking for negligence in all of your tiny decisions – such as the choice of specific dictionaries, for example, whether they are authoritative enough or not, all with the benefit of the hindsight which you didn’t have when you were translating.

 

That’s bad news.

Yes, which is why you should generally avoid unlimited, open-ended liability. That will not always be agreeable to your client, and for understandable reasons, but you can suggest taking out an insurance policy if the ability to sue for money is of such critical importance. A professional client in particular really shouldn’t be looking to you for risk coverage. That’s not exactly professional. And it’s not professional, either, to expect a solo translator to have the sort of deep pockets to reimburse the losses if there is a typo in a multi-million-dollar PR campaign or a large government procurement fails. That’s what insurers are for.

I’m mentioning this specifically because right now translation agencies’ budgets are so tight and the clients’ appetite for savings is so large, that there is no room for revisers, editors and proofreaders. Think of it: a whole team of high-octane lawyers pouring over a contract and inspecting every preposition, article or comma in it, each billing anywhere from €100 to €500 per hour, and then there is one translator expected to cover all bases single-handedly when that same contract needs to be translated into another language. Actually, it’s fortunate if a qualified translator is chosen at all, as opposed to the lowest bidder.

Let’s get back to your liability, though. Look for some reasonable limitations, such as stating that that the price agreed and paid for any specific job is the limit of your total, aggregate liability for that particular job, be it in contract, tort, product liability, criminal damages etc., be it direct or consequential or incidental or punitive or any other sort of damages. Under some jurisdictions and legislation you really need to list all this and much more than I listed here. Consult a lawyer if possible. Why not have such a lawyer prepare your own terms and conditions for you while at it? Choose a lawyer who is also your client, if possible. That’d be good business sense.

In case you are wondering about this, it isn’t unfair to tell your client, in advance, that you are not accepting liability above the limits of your insurance, for example. Then it is up to them to decide whether or not to proceed with the job.

 

Okay, can you wrap up by giving us some basic points to watch out for next time we sign a contract?

In short – and in keeping with what we’ve said so far – everything. We’ve supposedly got a crisis going on, there is a lot of cutthroat competition between agencies in the bulk market and their mark-ups are allowing them less and less wiggle room. Some clients are feeling desperate, others feel a sense of entitlement. People are ‘inventive’ in the methods they use to make some savings and push the burdens and risks onto someone else. So you should expect the unexpected. But avoid dozing off when you read through the standard-looking stuff, as well, as the darkest spot is sometimes right under the lighthouse. Don’t be rushed or strong-armed into signing something you’re unsure of. Be vigilant, be safe.

 

Wow. Thank you, Łukasz. Thank you so much for sharing your valuable insights with us all, and thank you for letting me publish such valuable content on my blog! Let me speak for all my readers and say you’ve been a great help.

Readers: Did that give you some food for thought? Was there anything there that reminded you of something you’ve read in a contract or are unsure about? Post questions below and Łukasz and I will do our best to answer!

Enjoyed this post? Found it useful? Share away!

About the Author:

Rose Newell is a British-born, Berlin-based copywriter and translator specialising in high end and high tech. Rose works exclusively with direct clients, mostly located in Germany, Switzerland, and Austria. This blog is a labour of love for colleagues, not a sales funnel for paid membership groups, webinars, seminars, courses or coaching services. As one of those who has consistently spoken out against instagurus, readers can trust this blog will never be monetised. Truly successful translators have no need for the pittance generated by such activities.

22 Comments

  1. Nancy Matis 17/04/2015 at 7:36 am - Reply

    Very interesting article (and comments).
    I’m always worried to sign new contracts and usually I ask my lawyer to check them – which of course costs money… Most of the time, we ask for some amendments – some might be accepted, others not. The one that always annoys me is about the location of the court that will deal with any litigation. Clients always indicate a court within their country – which seems normal since in my own agency’s contracts, my lawyer also indicated that the Belgian courts will judge any case. But I’ve always wondered how this would really evolve in a situation where 2 different countries would be involved – especially out of Europe. Like if my client in China does not pay me, which court will help me to get my payment back?? If my client’s contract mentions that Shanghai’s courts are the only applicable ones, could I really win the case? International laws make this even more complex – we need international lawyers in such cases. Łukasz, have you ever been exposed to cases involving several countries?
    Thanks!

  2. Beatrice Hendon 09/12/2014 at 8:13 am - Reply

    This post is so informative. I enjoyed reading this.

  3. Tone Halling 07/07/2014 at 12:35 pm - Reply

    Any experiences or thoughts on using ATA’s model contract for translators as basis for own contract?

    Thanks, Łukasz, for your detailed and enlightening article. I have received numerous such agreements from clients, and I have often objected to their liability clauses in particular.

    I just received an agreement from a client, and the agreement has numerous clauses that I find totally unacceptable, so I have replied that I am unwilling to sign it as it is.

    I was considering sending the agency my own contract, based on the ATA’s translation job model contract (http://www.atanet.org/business_practices/services_agreements.php), and wonder if anyone has any experience using that?

    Anyway, here are some examples from the contract I just received. Enjoy 🙂

    3.3: “The Consultant shall use reasonable endeavours to ensure that he is available at all times on reasonable notice to provide such assistance or information as the Company may require.”

    3.6: “The Consultant undertakes to the Company that during the Engagement he shall take all reasonable steps to offer (or cause to be offered) to the Company any Business Opportunities as soon as practicable after the same shall have come to his knowledge and in any event before the same shall have been offered by the Consultant (or caused by the Consultant to be offered) to any other party provided that nothing in this clause shall require the Consultant to disclose any Business Opportunities to the Company if to do so would result in a breach by the Consultant of any obligation of confidentiality or of any fiduciary duty owed by the Consultant to any third party”

    I asked the agency to clarify this, and she replied that it means that I should let agency know about translation opportunities that don’t interfere with my own work. I’ve never come across such a clause before, and it seems totally weird…

    Under paragraph 8, Data Protection:
    “The Consultant consents to the Company and any Group Company holding and processing data relating to him for legal, personnel, administrative and management purposes and in particular to the processing of any “sensitive personal data” (as defined in the Data Protection Act 1998) relating to the Consultant including, as appropriate:

    (a) information about the Consultant’s physical or mental health or condition in order to monitor sickness absence;

    (b) the Consultant’s racial or ethnic origin or religious or similar beliefs in order to monitor compliance with equal opportunities legislation;…”

    And then, a huge paragraph regarding Intellectual property:

    ” 9. INTELLECTUAL PROPERTY
    9.1 The Consultant hereby assigns to the Company all existing and future Intellectual Property Rights in the Works and the Inventions and all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this agreement, the Consultant holds legal title in these rights and inventions on trust for the Company.”

    And then, as icing on the cake, the liability clause:
    The Consultant agrees to indemnify the Company and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred by the Company, or for which the Company may become liable, with respect to any intellectual property infringement claim or other claim relating to the Works or Inventions supplied by the Consultant to the Company during the course of providing the Services. The Company may at its option satisfy this indemnity (in whole or in part) by way of deduction from any payments due to the Consultant.”

  4. Lukasz Gos-Furmankiewicz 08/03/2014 at 8:35 pm - Reply

    Now regarding your liability limit. It doesn’t necessarily have to be the price you’re paid for the translation. If you’re feeling more confident you can make it 2-3 times, or the limit of your insurance payout. The point is, it shouldn’t be unlimited, open-ended.

    The above may sound somewhat unfair to you and yes, it does sound somewhat unfair to me that one should be causing damage and not paying for it, but it isn’t necessarily fair to put too much risk on the translator, especially when the client isn’t taking appropriate precautions. If the client has a multi-million-dollar transaction, the client should use the best translator available, the best editor and proofreader (or reviser, reviewer etc.) with some rigorous QA procedures, along with lawyers to pore over it and fish out any potential mistakes or ambiguities. Lawyers are not expected to handle the QA single-handedly when they draft contracts or pleadings for their clients! It’s more likely to involve several lawyers from both the law firm and the client’s own legal department, some of them quite important lawyers at that (e.g. partners, chief counsel). Just why should the entire responsibility be dumped on the shoulders of a single translator then?

    So the limitation we’re talking about is not really a matter of the translator avoiding responsibility but rather the translator not wanting to take risks in lieu of the client when the client isn’t taking appropriate precautions in the light of the gravity of the situation.

    In a way this is a similar issue to agencies trying to make translators the parties responsible for proofreading, editing and the rest of QA instead of retaining appropriate dedicated professionals.

    Of course, it’s better if you have some decent insurance coverage and can afford higher guarantees, at least higher in proportion to the value of the typical smaller jobs. But when sky’s the limit, the client should be employing a whole team of qualified professionals to make sure that no risks are taken. And pay for dedicated insurance for the transaction itself (including the translation of it) or just the translation project (not like anybody will, in real life, but anyway).

    In short, huge damage, loss or avoidable expense is properly avoided by proportionally adequate QA, for which the client should be paying. Making the translator contractually liable instead is not the correct answer. So don’t feel too bad about not letting them.

  5. Lukasz Gos-Furmankiewicz 08/03/2014 at 8:18 pm - Reply

    Karen – yes, it’s every important to read every word and with a fresh mind, basically be as careful as if you were translating that contract for a demanding client who also stands to lose serious money if you err. Many contracts are standard, but there are also nonstandard additions (sometimes a single word will radically change the whole meaning), and it’s not uncommon for contracts to be harsh.

    Plus, as wordy as lawyers can be, it doesn’t take 10 pages to give a rundown of your rates and mention the company style guide, the governing law and courts or arbitration. It isn’t a novella, there’s gotta be some concrete stuff in it. Modern contracts don’t require too much ritual wording to make them valid in the eyes of the law, so it’s not just empty formalities but concrete terms and conditions which takes so much space.

    Needless to say, if they ambush you with a huge contract they shouldn’t complain that you need time to read it and can’t sign right away (and likely won’t be signing before they agree to some changes). It’s they who brought it about, not you, so pay no heed to guilt trips and compassion baiting.

  6. Lukasz Gos-Furmankiewicz 08/03/2014 at 7:58 pm - Reply

    Now on to oral and other non-written contracts, re: what Karolina brought up. Yes, e-mails make contracts. So do phone conversations. A contract doesn’t need to be a very formal piece of writing with signatures – strictly speaking, such requirements are exceptional (e.g. in Polish law they’d apply to real property conveyance, larger loans etc.). If you sit in your of office with a price list hanging on the wall alongside a description of your services, and a client comes in, dumps a file on your desk and you just nod your head and he leaves, you will likely have a contract there. The thought that one hasn’t put anything into writing may give an illusion of safety, but it’s only an illusion – especially where the parties operate under standard terms of service which are readily available.

    Speaking of which, (and this is something Shain mentioned too), if you want to make your terms of service readily available like that, you should mention them in your e-mail signature with a link (or attach them as a file some time into the negotiation) and annotation that confirming an order means accepting your terms and conditions.

    However, at least within the European Union, if you want to show your terms and conditions online you should make sure that they either 1) don’t apply to consumers, or 2) don’t violate any consumer provisions (which is actually very hard to avoid unless you are content to leave yourself totally exposed). There are currently predatorial law firms which abuse the complexity of consumer laws in going after small companies to make some quick buck. As a minimum you can’t disclaim or limit your liability in any way or meddle with governing law and competent courts or reassign any risks to a consumer, but there’s more to it, and you should consult with a consumer-savvy lawyer if you go for anything more complex.

    In any case, when you start drafting you may discover how difficult it is to avoid sounding one-sided and even *being* one-sided in such work. Trying to be fair and sound friendly while protecting your own rights and interests adequately is a difficult exercise even for a lawyer. This should give you some perspective for when you read contracts agencies ask you to sign. 😉

  7. Lukasz Gos-Furmankiewicz 08/03/2014 at 7:41 pm - Reply

    Hi. I would like to thank all of our readers and commenters. Let me try to address some of Kevin’s concerns first. To start off, I would like to stress that while intended to cover as many important aspects as possible for a series starter, it wasn’t possible to cover literally everything or offer a great lot of in-depth analysis at this early stage.

    I warned our readers not to be cajoled or bullied into signing anything just because the agency or client wants it signed and wants it here and now, which is where I thought it proper to end it. I thought it a bit too obvious to mention that you aren’t legally obligated to accept whatever terms the other party attempts to dictate to you onesidedly.

    Now, regarding the adversarial tone and the advantage of the originating party – that’s often the case but not always. Some contracts are friendly and constructive, some at least respectful and fair. In a more litigious society perhaps an overlawyering party can feel the temptation to include language that only serves litigation purposes, or use adversarial language and attempt to mark territory, or both. It’s important not to let them prance about unchecked. I generally don’t allow my clients to use that type of language, in which case, of course, some of them won’t allow me to become their translator. I try not to use that language myself, but the challenge is a difficult one.

    … Which is another thing I wanted to mention in the context of this interview: the agency’s (or client’s) drafter is not the translator’s advocate. The drafter works for the agency/client, so it’s only natural for him or her to identify with the agency’s/client’s interests and cover the issues which are important to the agency/client without spending too much time elaborating on the translator’s rights – that’s up to the translator to do. Naturally, some agency/client staff may forget about this latter part, i.e. the translator’s input resulting from the translator’s need to protect the translator’s own interests and rights. As long as they give you time and give your proposals some serious, mature consideration, everything is pretty much fine. It may not be the friendliest or most relaxed or inclusive setting, to be sure, but not necessarily hostile or unfair.

    ‘No competent attorney would ever advise a client to do anything other than put forth terms most acceptable to the attorney’s client.’ True, but the lawyer’s client is a business actor and business actors need the consent of other business actors to enter into transactions. This is why nobody gets to have it totally one’s own way. In short, compromise. Whether it’s a traditional 0-sum-game compromise (e.g. 80/20 or 50/50), which is a simplified view I generally disagree with, or a more value-building approach (e.g. 70/65 or 80/80) that requires more effort and insight, some form and degree of compromise is necessary. At the end of the day, the proposed contract needs to be at least grudgingly acceptable to both parties. More adversarial types may be inclined to start high and concede only gradually, while more collaborative negotiators would start closer to what’s acceptable to the other party and seek mutual satisfaction.

    The degree of interest in mutual satisfaction will vary from one actor to the next, largely depending on other available options (e.g. the immense pool of translators that Kevin mentions under #5), but also on the business strategy and the maturity and moral values of the parties. Not everybody is a hardball player! Not even some of the agencies who have really bad-looking contracts that they ordered from some lawyer 10 years ago whose name nobody remembers any more.

    (The nicer agencies might simply not see the need to change anything in their standard contracts until they receive feedback from disappointed translators. So, translators, be courageous! Don’t let stage freight or fear of losing potential jobs prevent you from at least trying to bring it up with the agency – in respectful, reasonable, common-sense, constructive terms, just like you’d like them to talk to you.)

    Regarding courts throwing out outrageous, one-sided contracts, I wouldn’t be too optimistic. There are courts which will throw out anything that moves the balance of the parties outside a 50/50 or 60/40 range, but there are also courts that believe in giving effect to enforcing the ‘intention of the parties’ as it is written and signed. Two different judges’ views may differ radically within the same jurisdiction. In short, one judge will throw out anything that doesn’t conform to his sense of justice, another will keep anything that’s formally correct and doesn’t literally contradict any statutory prohibition. So, never sign anything you don’t want to be bound by.

    As regards the deep pockets – yes, a lot of it may be bluff and threat, and the claimant (plaintiff) will be fronting the docket fees and a lot of the expenses. A huge lawsuit against a freelance translator doesn’t sound reasonable. But lawyers and their clients don’t always act reasonably. Besides, if they can force you into a settlement under which most of your future earnings, until you die, will be paid to your ex client, why shouldn’t they? If you step on the wrong toes, why wouldn’t someone simply destroy you even though no economic gain can be made in the process? All the more so if making you the scapegoat would enable insurance benefits (e.g. compensation from the insurer past the point you go bankrupt paying the damages), enable them to dodge some other lawsuits (e.g. from a client or patient of theirs, or a class action by disgruntled consumers), save the good name of their managers who did something to your translation without consulting you or are backing out of the terms of your oral agreement (that nobody witnessed save the two of you). Finally, human stupidity knows no bounds, so you can never be sure. Remember that lawyers live by the clock and earn by the clock, so it’s not always in their best interest to resolve disputes quickly and efficiently and avoid protracted fights with slippery chances of winning (although it may run against their ethical obligations – which not all lawyers live by).

    Re: #5, I’m in full agreement. That’s especially true when they won’t even bother talking to you unless you accept their contract whole. Somebody else always will. Well, unless they simply don’t have many jobs in your pair and field, so it doesn’t pay to go through the negotiation for this reason – which possibly involves several hours of work on the part of your immediate contact, a lawyer and a business decision-maker. Naturally, it’s also possible that they simply didn’t ‘budget’ (schedule rather) the time for negotiations because they didn’t think about it, just like they could presume you’d sign right away because it didn’t occur to them why not. Unfortunately, you can’t really force businesses with such an attitude into a mutually beneficient arrangement – they first need to shake off the inaction.

    • Kevin Hendzel 09/03/2014 at 7:43 am - Reply

      Thanks for your response, Lukasc.

      It seems we are in agreement in more areas than we differ. But I do think it’s worth emphasizing a couple of points for the benefit of translators reading this.

      My original comments were designed to share with readers how contracts actually work in the translation industry. So my comments were not really “concerns” so much as a form of clarification. I’m not an attorney, but I’ve spent a career in the translation industry being surrounded by lawyers of every stripe, so my two cents worth in this discussion is the practical view.

      For 20 years I owned and operated a large translation services company in the US that employed thousands of freelance translators and interpreters in 29 countries. Although I’ve never done the math, I am quite sure we paid out well over 15 million dollars US (at least) to translators and interpreters over that period all over the world. As you can imagine, that “translates” into many thousands of signed contracts, agreements, assignment sheets, negotiations and arrangements carved out over the phone or email or in person.

      We also employed a huge number of attorneys, largely because in the US you cannot take one step in any direction without immediate legal guidance. So we had standard corporate attorneys who would help with contract matters, but also tax attorneys, federal contracting attorneys, copyright and IP attorneys and consultants, international corporate attorneys and ultimately legal advisers and attorneys who advised us on the eventual sale of our company.

      So while we did not spend millions of dollars on attorneys, we probably spent a few hundred thousand dollars over that period, easily, and with all that money came a few thousand hours of very expensive top-notch expert legal guidance on exactly how contracts are written, why they are constructed the way they are, how they are enforceable and when they are not, what to avoid or emphasize, where you have room for negotiation and where you don’t, how liability works, where and under what terms copyright assigns, how US and international courts treat these matters, why jurisdiction matters, where and when it makes sense to pursue a breach and where it doesn’t, and a few dozen other areas I don’t recall right off the top of my head. And all applied specifically to the translation industry.

      So with all that in mind — how contracts work in practical terms in the translation industry specifically — here are my comments.

      1. I have never seen a contract written by a corporate attorney in the US — and I mean NEVER — that could be described as “friendly and constructive.” The legal system is by definition an adversarial system, and the US is a highly litigious society. So while it’s true that you need the two parties to find common ground to agree, once a dispute arises and the terms of the contract take over, “friendly and constructive” makes about as much sense as being “friendly and constructive” as a naked and unarmed human in a zoo packed with hungry lions and tigers. You are going to be disposed of in a way that is not pleasant, and the attorney who wrote that “friendly and constructive” contract is going to be looking for a new job flipping burgers or parking cars.

      That’s a comment on how and why contracts are written the way they are in the adversarial legal system in the US. Having said that, it’s exceedingly rare for translators to be on the bottom of the food chain as in the example above for reasons I’ll explain below. But the attorneys who are writing the contracts are trained to look out for their clients’ best interests first, and if you’ve written a contract that turns your client into a nice snack for a carnivore you are probably in the wrong business.

      And in this same connection, we never did pursue the legal remedies available to us under various contracts with freelance translators and interpreters in any punitive sense, even though there was some pretty outrageous behavior out there. In the overwhelming majority of cases, the translators and interpreters were admirable, honest and solid professionals, but there were still a surprising number of people who would turn out to be various shades of charlatan or crook or incompetent wreck or general hot mess.

      2. Attorneys in the US do write contracts to the benefit of their clients but are always mindful of their being so lopsided that they will simply be thrown out of court. I mentioned this in my original list and you challenged it, saying that you “wouldn’t count on it.”

      The reason for caution is that writing lopsided contracts INVITES a court to declare the entire contract invalid, and it’s a quick way to find yourself without any of the protections or remedies you had intended in the first place.

      As an analogy for the translators reading this, imagine that using a specific word or term in a translation meant that in 16% of the cases where that word or term appeared, you would never be paid for the translation. How often are you going to use that word or term? That’s right, you are going to be EXCEEDINGLY cautious about EVER using it. It’s a serious consideration in the enforceability of contracts.

      3. I’m going to stick with and in fact reiterate my position on #4 on scale and whether translators have a great deal to fear from translation companies dragging them into court in pursuit of huge financial settlements from extended and costly litigation.

      This is exceedingly, extraordinarily, immensely unlikely.

      From the standpoint of the deep-pockets party, it makes exactly zero sense to spend real dollars to chase phantom dollars, especially when you could face open-ended litigation costs that drain you dry in a competitive environment where you are fighting every day on market share or trying to keep shareholders happy.

      In fact, in a publicly traded company, any manager who went down such a road would be terminated almost immediately. Even a crazy small time operator would be likely bankrupted by such an ill-advised venture and of course one of the reasons why is that there’s a huge difference between obtaining a judgement against a translator and then enforcing it. The translator could just declare bankruptcy or change country of residence or spend a few decades dodging such an enforcement attempt.

      Contracts between two deep-pocket entities on the other hand do matter and it’s one of the reasons that one of the most profitable areas in the translation industry is international patent and IP litigation cases. When significant assets exist on both sides and neither party is going to skip out on the settlement, there are very serious and meaningful consequences for both parties.

      In our industry, contracts are designed to set out the rules of the road. They can be used to persuade and I’ve seen them used to threaten, but honestly we are kidding ourselves to think that translators have a great deal to fear from overly litigious translation companies.

      Nobody has that kind of time or money to waste on speculative nonsense anymore.

  8. Karolina Karczmarek-Giel 23/02/2014 at 9:12 am - Reply

    This was a very thorough and informative post, and so much information in the comments! I must say I really enjoyed the read.

    Apart from zombie contracts, I feel that another big issue for many translators are non-written contracts by the way of emails and conversations with the client, who knows exactly what he’s doing. Using your own contracts is a great idea, but I’m sure there are some translators out there are not even aware that they are entering into an unwritten contract at all.

    _____________
    Karolina Karczmarek-Giel
    Office Assistant
    wantwords.co.uk

    • Stefano Lodola 19/03/2014 at 3:29 am - Reply

      Totally agree.
      By the way, I’ve just attended a webinar about “terms and conditions”. I found out that there’s a EU directive about fair payment terms and anything over 60 days is “not fair”. What about pointing that out to Italian translation agencies asking for 90 days?

      • Rose Newell 19/03/2014 at 6:07 pm - Reply

        “not fair” is an understatement. It’s illegal. I don’t work with them. I mean, it’s up to you what you do, and you can point it out to them and hope they change, but whether they will is another matter…

        Either way, it isn’t good for your business to be waiting that long for payments.

  9. […] Have you ever wondered about the terms translators are asked to sign? Łukasz Gos-Furmankiewicz calls these “zombie contracts”. I invited him to explain all.  […]

  10. […] for translators Financial Translation is a Balancing Act English purism: What might have been Zombie contracts: Translators beware Don’t be stingy with the translator! Possessive with names ending in s Terminology matters […]

  11. Karen Sexton 03/02/2014 at 12:40 pm - Reply

    Thanks Rose, Łukasz and Kevin (for the additional comments). This was very informative and it is nice to be reminded to keep vigilant when signing contracts. We sign so many contracts and over time we tend to do so mechanically, instead of with due care and attention. Again, thanks for reminding us and opening our eyes!

  12. Obi Udeariry 03/02/2014 at 11:33 am - Reply

    Very well said,Kevin. I couldn’t agree more with all the points you made, especially Nos.2 and 4. Thanks to Lukasz and Rose for the original article too.

  13. Kevin Hendzel 01/02/2014 at 10:45 pm - Reply

    Great coverage of some of the biggest offending provisions in contracts. Good to see this post Rose, thanks!

    I was surprised, though, about the absence of a few basic guidelines that can help translators navigate this minefield, so here’s a few additional thoughts (from someone who has been both a freelance translator and an owner of a major U.S. translation company for about 18 years) that people may find helpful.

    1. First, and by far the most important, it’s crucial to remember that all contracts sent over to you are OFFERS. They are nothing more than one party’s suggestions for the terms of a business relationship.

    You are not only free to revise, strike out, amend or add your own terms, it’s almost expected that you will do so.

    2. Contracts are always, always, ALWAYS written to the advantage of the originating party. The same is true of model contracts translators use, such as the ATA model contract. It favors the translator. No competent attorney would ever advise a client to do anything other than put forth terms most acceptable to the attorney’s client.

    The law is an adversarial system. It’s designed to be that way so it’s helpful to remember that the adversarial tone of the contract is a reflection of the environment in which it is exercised.

    3. In general — a big caveat — the more uneven and lopsided a contract, the more likely a court will toss it out, if for no other reason than the greater the sheer number of punitive or restrictive clauses, the more opportunities for any random clause or provision to blow up (yes, I’m aware that most contracts protect the integrity of the rest of the contract against the invalidity of any single clause, but on balance they will usually impede enforceability).

    4. Let’s also keep in mind financial scale here. Translators are not pharmaceutical companies or bulky multinationals with infinitely deep pockets. The likelihood of any company or agency expending considerable amounts of speculative cash up front on trying to wring assets out of a freelance translator runs into massive blood-from-a-turnip problems. They may try to beat you over the head with a contract but it’s mostly bluff and threat — the path from contract to settlement is roughly the path from Saskatchewan to the British Antarctic Territory. And the entire journey down that path is something they pay for out of their own pocket. Seriously.

    5. The reasons many translation companies dump as much liability on translators as possible is because the translator labor pool is perceived by such companies to be so immense and the skill set so interchangeable that translators in their view are fungible. If one translator does not sign, another will.

    So the extent to which the contract is punitive or restrictive can be a useful indicator of exactly how the company views translators and how a relationship with that company could proceed. The opposite is also true — the more moderate or modest contracts are usually indicative of a company that values their relationships with translators and recognizes how important they are to their commercial success.

  14. Shai Navé 01/02/2014 at 6:31 pm - Reply

    Great article, thank you Rose and Łukasz.

    I think that a translator should have his or her own ‘contract’ that covers all the professional bases in a fair way to all parties involved. Those who will not want to accept these terms and insist on forcing theirs, are probably not someone one should work with.

    As far as liability and indemnification go, they should be limited to the scope and maximum value of the project, that is, in the rare case of a proven colossal issue the translator will not be paid (professional will probably offer to correct the text or forfeit their fee if they can’t correct the issue, anyway), but never will the translator will be liable to any more than that (and I saw some contracts stioulating a fee of up to half a million dollar, no less).

    There is a lot of abuse going on in the translation marketplace, preying and exploiting the somewhat lacking business awareness of many independent translators.

    Be smart about and stay safe.

  15. Nikki Graham 01/02/2014 at 3:18 pm - Reply

    Very interesting stuff. Thanks very much for posting. I have often added to agreements I am expected to sign that I will not be liable for more than the price I am paid for the translation.

  16. […] Have you ever wondered about the terms translators are asked to sign? Łukasz Gos-Furmankiewicz calls these “zombie contracts”. I invited him to explain all.  […]

  17. Eppo Schaap 31/01/2014 at 6:12 pm - Reply

    Good story! I’ve signed a lot of contracts but refused so sign some too. This extends my knowledge about the subject. Especially the tip to ask your client if they agree with your maximum insurance coverage is wise one.

  18. Alain Marsol 31/01/2014 at 6:00 pm - Reply

    Thanks Łukasz (and Rose) for making this information available. A great read, plenty of practical wisdom, and a very interesting name! 😉

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