BUSINESS CONTRACTS

OBJECTIVES

• understand What is actually a contract, its characteristics,

its legal importance, types of business contract,
contextual use .
• grasp the elements of a contract, checklist in preparing a
contract, incidents encountered in contract writing
• use special language for contract and general principles
in translating legal contract in business settings
Core focus

• Topic 1: contract- definitions, types of business contract,

its importance in legal aspects, contract elements.
• Topic 2: language features, check list in preparing
contract, contract translation methods and tips
Contract- definitions topic 1

• A contract is a voluntary agreement between two or more

parties that a court will enforce. The rights and obligations
created by a contract apply only to the parties to the
contract (i.e., those who agreed to them) and not to
anyone else.
• A contract is an agreement between two or more parties
that is enforceable by law
Valid features of a contract

• Offer and acceptance

• Consideration
• Capacity
• Consent
• Lawful purpose
Why contract

• Hiring an employee or contractor

• Entering a partnership or a joint venture
• Franchising a business
• Selling or renting property
• Buying or selling goods or services
• Entering into an agreement that will take more than a year
to complete
• Interacting with government agencies
When use contract

• It can protect confidentiality. A carefully written

contract can include a non-disclosure agreement that
requires parties not to make some information public.
• You have already made a verbal agreement =>
formalize, create and reinforce more trust
Contract is legally important

• Proof of Details
• Avoids Misunderstanding
• Provides Security
• Provides Confidentiality
• Acts as a Record of the Business
Types of contract

• Express contract: is a legal • under seal: a formal,

agreement in which the terms written contract that is
are transparent and known to signed, witnessed, and
all the parties involved (e.g. a marked with a seal.
mortgage with a bank)
• Simple contract: a contract
• Implied contract: a contract
that is implied, or inferred by that is not under seal
the parties' conduct. (e.g. (verbal, written, or implied)
restaurant bill)
Elements/ components

• Competent parties (legal • Condition of obligation

capacity) • Provisional, remedies..
• Preambles, recitals, word • General provisions
of agreement ( if any). • Signatures
• Definition
• Action section
( consideration)
• Covenants and rights
Considerations

• something of value must be exchanged between the

parties who are involved in the contract.
• The parties agree to:
• Perform the main subject matter of the contract;
• Pay the financial consideration, ( purchase price,
rent, or royalties);
• State the terms of the contract ;
• State the closing date (if any);
• List the closing deliveries (if any)..
Detailed description of each party may include:

• Rights of each party

• Relevant dates ( if any)
• Relevant prices or other dollar amounts
• Relevant quantities
• Payment terms
• payment method: Lump sum, COD, installments?
• Payment due dates
• Taxes
• Interest
• Late fees
General provisions

• The choice of law governing the agreement

• Arbitration or jurisdiction of a court in the event of contract
dispute
• How and where to deliver the notice to relevant parties
• Disclaimer
• Limitation of liabilities
• Confidentiality provision
• Indemnification
• etc
Mistakes

• A common mistake occurs • • A unilateral mistake is when

when an error is made by one party to the contract
both parties in the contract. made a mistake, and the
other party knew of it but did
• 02 types of common not try to correct it. .
mistakes in contract
• A clerical mistake is an error
preparations caused by a clerk or store
employee. ( numbers, such
as incorrect prices)
Discharging/ terminating a Contract

• Once a contract has been • – Performance

successfully agreed upon, • – Mutual agreement
there can be several • – Impossibility of
different ways to discharge, performance
or end it:
• – Breach of contract
Language use in contract writing

• archaic adverbs and • use of performative verbs:

prepositional : phrases: agree”, “declare”,
“promise”, “undertake”,
hereinafter”, “forthwith”, “warrant”, v,v
“hereby” , “subject to”, • Suffix: -er (-or) and–ee:
“pursuant to”, “IN licensor “licencee”. “lessor”
WITNESS (người chủ cho thuê nhà)/
WHEREOF/THEREOF .. “lessee” (người thuê nhà),
“consignor” (bên gởi
• binomials and trinomials: hàng)/ “consignee”
“true and correct”, “null • use of common words
and void with uncommon meanings
Language use in contract writing
• make/sign/enter into a contract: ký kết hợp
đồng
• draw up a contract: thảo hợp đồng
• breach/break a contract: vi phạm hợp đồng
• honor a contract: tôn trọng hợp đồng
• negotiate a contract: thương lượng hợp
đồng
• perform a contract: thực hiện hợp đồng
• renew a contract : gia hạn hợp đồng
i
...
• In case the Buyer fails to carry out any
of the terms and conditions to this
Contract with the Seller, the Seller
shall have the right to terminate all or
any part of this Contract with the Buyer
• To make every effort, if possible, to
complete any portions of this Service
in less time estimated
Drafting a contract

• Agreeing to the business terms

• Determine who drafts the contract
• Learning about transaction
• Preparing to draft a contract
• Drafting with and without precedent
• Logistics of drafting contract
• Drafting the contract
Helpful Guidelines when starting to draft a contract

• Write many drafts of the contract to get it right

• Use clear, simple, businesslike language
• One clause- one thing-proper outlines
• When revising, check for ambiguity
• Reread and cross check
Important tips for revising and checking the draft contract

ACCURACY:
• a. Is the content accurately stated?
• b. Could any points be misunderstood because of ambiguity?
• c. Are irrelevant facts or other irrelevant information excluded?
• d. Are terms of art used correctly?
• e. Are key terms used correctly?
• f. Are paraphrases accurate?
• g. Are names of parties and their status correct?
• h. Are the citations accurate?
Important tips for revising and checking the draft contract

ORGANIZATION:
• a. Are paragraphs internally logical?
• b. Are there clear and precise transitions between paragraphs and
sentences?
READABILITY:
• a. Are subjects and verbs close together?
• b. Are unnecessary modifiers eliminated?
• c. Are sentences not overly long?
• d. Are lists clearly structured?
• e. Are unnecessary prepositional phrases eliminated?
• f. Is the text generally concise?
Important tips for revising and checking the draft contract

STYLE:
• Is style consistent?
• Is the tone and level of formality appropriate and
consistent?
• Use the right verb
• State the requirement positively
• Active voice
• Keep your sentences short
Contract translation ( legal text translation)

• specialized discipline. • Contracts

• dependent on culture, and • Licenses
legal translations are not • Corporate documents
always linguistically • Other legal documents
transparent.
• translated by translators
with experience in this
area
Legal translation methods (Newmark’s model- 1988)

• Word-for-word translation: it • Faithful translation: a

is a method in which the SL
word-order is preserved and
the words translated singly by
their most common meanings,
out of context.
• Literal translation: the SL
grammatical constructions
are converted to their nearest • Semantic translation:
TL equivalents but the lexical
words are again translated
singly
faithful translation attempts
to reproduce the precise
contextual meaning of the
original within the
constraints of the TL
grammatical structures
‘semantic translation’
differs from 'faithful
translation' in that the first
is uncompromising and
dogmatic, while the
second is more flexible
Legal translation methods (Newmark’s model- 1988)
• Adaptation: it is the 'freest'
form of translation. It is
used mainly for plays
(comedies) and poetry;
• Free translation: the
translator reproduces the
matter without the manner
or the content without the
form of the original
• Idiomatic translation: it
reproduces the 'message' of
the original but tends to distort
nuances of meaning
• Communicative translation:
this method attempts to render
the exact contextual meaning
of the original in such a way
that both content and
language are readily
acceptable and
comprehensible to the
readership
Practical advice in English- Vietnamese contract translation

• Transposition: after the • Change adv to Subject:

arrival of the goods at
destination” : “sau khi
hàng hóa đến đến cảng
đến” (after the goods
arrived at destination),
The production design,
technology of
manufacturing, means of
testing, materials
prescription, standard of
quality and training of
personnel shall be
stipulated in Chapter 4 in
this contract
Practical advice in English- Vietnamese contract
translation
• Modulation: an act of God” • Change passive to active
form: Now it is hereby
agreed (passive) by and
between the Parties as
follows…==>– Nay hai
bên đồng ý (active) các
điều khoản sau
Difficulties in contract translation

• Different legal systems • Practice makes perfect

and laws
• Linguistic difficulties
• Cultural problems