Drafted clause makeover #3

Reviewing a procedure clause from a Dutch foundation’s terms and conditions

Let’s take a close look at a typical clause from a set of Dutch general terms and conditions prepared in English. This example is based on a clause that was — quite randomly — found on the website of a Dutch foundation. In this clause, the foundation sets out the responsibilities of a registrant to provide accurate contact information. Here is the original online Dutch version and its current translation:

Boor bepaalde zaken kan ABC rechtstreeks contact opnemen met de houder (bijvoorbeeld in geval van een verzoek tot beëindiging van een abonnement). De houder wijst een administratief contactpersoon (admin-c) aan met wie ABC in deze situaties contact kan opnemen. Deze administratief contactpersoon vertegenwoordigt dan de houder. De houder zorgt ervoor dat de administratief contactpersoon bereikbaar is op het e-mailadres dat in de administratie van ABC staat vermeld. Alle berichten van ABC die zijn verzonden naar het e-mailadres van de administratief contactpersoon worden geacht te zijn ontvangen door de houder. Bij het aanvragen van een abonnement dient de houder dan ook het e-mailadres van een administratief contactpersoon op te geven. ABC neemt die gegevens op in de administratie.

Under certain circumstances, ABC needs to make direct contact with a registrant (e.g. if a request to terminate a registration is received). To make this possible, every registrant needs to nominate an administrative contact person (admin-c). The administrative contact person acts as the registrant’s representative. The registrant has to ensure that the administrative contact person may be contacted at the admin-c e-mail address recorded in ABC’s database. All communications sent to the e-mail address in question are assumed to have been received by the registrant. When applying to register, a prospective registrant therefore has to give the e-mail address of an administrative contact person, which ABC records in its database.

A translation with issues

A casual read is enough to see that the English text has various problems. The clause is too wordy and includes unnecessary information. There is a problem with the modal verbs used to express the various obligations and entitlements. There are inconsistencies and style issues.

There are also a few translation problems. I’m mindful of how difficult drafting and legal translation can be, so in reviewing this clause I do not mean to say that this clause is worse than any other. It seems quite typical to me. Also, any problems in the translation may not have been any one person’s but the fault of the original drafters of the Dutch text or the various people who checked the translation later (or failed to do so).

A final issue is that there seem to be significant differences between the two versions. Presumably, the clause was translated from Dutch to English, and the Dutch version prevails.)

At the end of this post, I’ll provide a sentence-by-sentence comparison of how this clause could have been better worded. But at this point, I’ll just provide the entire makeover:

ABC may contact a registrant directly. The registrant must designate an administrative contact person (“contact”) that ABC can contact. This contact then represents the registrant. The registrant must ensure that the contact can be reached at the e-mail address recorded in ABC’s records. There is a presumption that all communications sent by ABC to the contact’s e-mail address are received by the registrant. In the registration application, the registrant must therefore provide a contact’s e-mail address. ABC records this information in its records.

The danger of saying too much

The first sentence in the original Dutch clause offers introductory wording that seem to be redundant (overbodig) and unnecessarily limiting (…kan ABC rechtstreeks contact opnemen met de houder …). In essence, the sentence says that ABC will possibly contact a registrant. This is a general statement about something that may happen. But then the introductory wording seems to unnecessarily undermine this general statement by specifically suggesting that this may happen only in certain situations (voor bepaalde zaken). The problem with adding this phrase is that it implies that direct contact may be refused by the registrant in other situations, and that’s presumably not what the foundation intended.

The first sentence ends with an example (bijvoorbeeld in geval van een verzoek tot beëindiging van een abonnement). Was it necessary to give an example of when the registrant might be contacted? The reader wonders, “Out of all the possible examples, why have you given this specific example?” “Did you mean to restrict the situations just to those similar to this example?” The court may interpret the example as intended to limit the situation in some way when that was not meant at all. In Beaumont-Thomas v. Blue Star Line (1939) 3 All ER 127, Lord Justice Scott calls giving examples a “pernicious practice”. Giving an example is occasionally done in drafted text but doing so is unusual and it is not advised. It may lead to problems particularly if the example seems unnecessary.

There is a difference between giving an example and stating an inclusion. If you mean to say that a situation is specifically meant to be included, state that expressly by using “including” wording rather than by giving an example. However, the problems described above may also arise with an unnecessary inclusion.

If there seems to be a good reason to omit or add elements in the translation of a text, first consult with the drafter so he or she can consider amending the source as well. You may be the first person to review this drafted text, so your feedback will be appreciated.

Avoiding modal mayhem

Be careful to check the verbs and modal verbs to ensure that they are expressing the obligations and entitlements clearly. Use “must” to express obligations. Use “may” to express entitlement and possibility. Use “can” to express ability. If the obligation or entitlement is implied in a present tense verb, express that in English with the appropriate modal verb.

1. Don’t use “needs to” to express possibility

In the first sentence, the modal verb used is kan (kan…contact opnemen). From the context, it seems that this sentence is primarily meant to describe something that the foundation possibly will do, not something that it is entitled to do. When kunnen indicates possibility (or entitlement, for that matter), the best translation is usually “may”. However, in the English translation, this kan has become “needs to” (“needs to make…contact”). In other words, an obligation (of sorts) is unnecessarily imposed on the foundation in the English version when no such obligation is imposed in the Dutch version.

2. Don’t use “needs to” to express an obligation

In the second sentence, the first verb is in the present tense (wijst…aan). However, this clearly refers to an obligation on the part of the registrant (de houder wijs een…contactpersoon…aan). The use of the present verb tense to express an obligation can look irregular and unclear to English eyes but this as conventional in Dutch. There is no doubt that this is an obligation, and not just a mere description of a procedure. The foundation requires a registrant to appoint a contact person, and in a dispute would point to this clause as justification for this requirement. In English, an obligation like this should be expressed, i.e. “the registrant must designate”).

The translator correctly perceived this problem. In the online translation of wijst…aan in the second sentence, the obligation is indicated by the wording “needs to”. However, “needs to” is not a goodway to express an obligation in legal drafting in any situation. It would have been better here to use the clear and conventional word “must designate”. If “must” is too strong (which does not seem to be the case here), there are alternatives — but “needs to” is not one of them!

3. Don’t use “has to” to express an obligation

In the third sentence, the verb is zorgt ervoor. Again, despite the use of the present tense, this was meant to set out an obligation on the part of the registrant, i.e. the registrant “must ensure” that the contact remains accessible. It might have been more effective to impose this obligation more directly, but the use of the construction zorgt ervoor (must ensure/must procure) wording is conventional enough. The translator admirably perceived this problems. In the translation of this wording, “has to ensure” is used. However, “has to” is not conventionally used in English drafted text to set out obligations. “Must” is better.

In the second-last sentence, dient was correctly perceived to set out an obligation (dient de houder…het e-mailadres…op te geven), but the best English word for that is “must”, not “has to”.

4. Don’t use “may” to express ability

In the fourth sentence, a choice was made to translate bereikbaar as “may be contacted”. Bereikbaar is primarily an expression of ability (-baar), which in English is usually translated with the assistance of the word “can” or the suffix “-able”. “Reachable” is an option, but “can be reached” is better.

Good signposts

In the original Dutch text, the drafter has decided to define a term: administratief contactpersoon (admin-c). The translator has left the Dutch defined term untranslated in the English version, i.e. “admin-c”.

However, both the drafter and the translator fail to use the defined term in each of the three sentences that follow. If you’re going to define a term, consistently use that defined term. For a translator, the question is whether the translator should point out the style problem to the original drafter or simply translate the infelicity without further comment. I would go with the former option.

Something like “contact” is a better defined term than “admin-c”. This defined term is possible in English, but it could have been translated differently. There was no need to use the Dutch term in the English translation. There are several guidelines on choosing a good defined term. One of them is to avoid complicated and unclear designations. Choose a simple descriptor that people can remember.

Although not necessary, it seems clearer and more conventional to mark the defined term in some way. I would add quotation marks when the word is defined, for example,

Lost in translation

Translation is not a science, but there are some word choices in this text that are open to comment. The general principle is that care is always needed to ensure the English text accurately reflects the Dutch text.

In the first sentence, voor bepaalde zaken is translated as “under certain circumstances”. As explained above, the phrase should perhaps not have been included at all. However, if the phrase is left in, a different translation might be better, e.g. “in certain situations”. The use of situaties in the second sentence is a clear indication that this is what zaken meant in this case.

The Dutch text says worden geacht in the fourth sentence. Some Dutch lawyers use the word achten as a code word indicating an irrebuttable (onweerlegbaar) presumption. I’m not sure whether that was intended here. I’d have to ask the drafter. However, if so, the best way to translate this is like this: “There is an irrebuttable presumption that…”. If the presumption is not rebuttable, use this: “There is a presumption that…”. However, you could also use “are presumed” or “are irrebutably presumed”. Needless to say, “assume” (the word used by the translator) is not ordinarily a good translation for achten.

In this case, aanwijzen is better translated as “appoint” or “designate” rather than “nominate”. “Nominate” means benoemen.

I’m not sure that “database” is the right translation for administratie. “Database” means databestand. Maybe “records”?

Lack of accordance between the two versions

Literal translation is never a good idea, but this does not mean that the texts can be substantively different. Those working on an English version of Dutch drafted text should ensure that the two versions do not unnecessarily differ. Even small differences can lead to problems later. With drafted text in particular, legal professionals working on an English version of Dutch text should refrain from trying to improve, supplement or streamline the text — as tempting as that may be! In this text, there were many small differences between the two texts. It’s not clear why this occurred. Here is a brief list of them.

In the second sentence, met wie ABC in deze situaties contact kan opnemen has inexplicably become “to make this possible”.
Why does de registrant in Dutch become “every registrant” in English? Yes, “every” does sound more specific, and therefore more accurate in English, but that doesn’t mean it should be added willy-nilly to the English version.
In the third sentence, the Dutch text is op het e-mailadres dat in de administratie van ABC staat vermeld. This has been translated as “at the admin-c e-mail address recorded in ABC’s database”. The underlined part was not found in the original Dutchtext. So the English version has an added and possibly inaccurate explanation not found in the original Dutch.
A similar problem occurred in the fourth sentence. The Dutch text says, het e-mailadres van de administratief contactpersoon, but the English text says “the e-mail address in question”. The underlined part was not included in the English translation.
In the third-last sentence, the crucial phrase van ABC was completely omitted from the English text.
In the second-last line, houder became “prospective registrant”. Elsewhere, houder is just “registrant”.
The last sentence says this in Dutch: neemt die gegevens op in de administratie. But the English says, “records in its database”. A translation of die gegevens is missing.

Style improvement: avoid nominalisations

Try to avoid adding nominalisations to the English text, especially if it is not found in the Dutch text. A “nominalisation” is the use of a noun instead of a strong verb or other better construction. So vertegenwoordigt should be translated as “represents” not “acts as the representative of”. A bij phrase like bij het aanvragen van een abonnement is often smoothly translated by a prepositional phrase beginning with “on” or “in”. So not “when applying to register”, but “on registration”, “on applying for registration”, “in an application for registration” or “in a registration application”. Afterwards, go through the text to see if you can replace any “of” constructions with possessives (bezittelijk).

Ten tips drawn from this review

Remove the extraneous from drafted text. Don’t add phrases, examples and so on that might unwittingly mitigate the legal effect.
When producing an English version of Dutch drafted text, make sure the two texts correspond as much as possible. Literal translation is not the goal, but avoid adding or omitting elements.
If elements in a translation are omitted or added for good reason, inform the drafter so he or she can consider amending the source as well. You maybe the first person to review this drafted text, so your feedback will be appreciated.
Take extra care with the verbs and modal verbs indicating obligation or entitlement.
If an obligation is implied in the Dutch text, express it in the English text. Use “must” to indicate obligations, not “has to” or “needs to”.
Use “may” to indicate possibility or entitlement. Use “can” for ability.
If wordt geacht is used in Dutch, check with the source to confirm how it is being used and what possible implications is may have. Legalfictions and irrebuttable presumptions may be involved.
If a term is defined, use the defined term consistently.
Avoid using a noun if a strong verb is available.
Avoid “of” by using the possessive more.

Line-by-line comparison

Here is a sentence-by-sentence comparison of how the sentences in this clause could have been better worded. Of course, where the suggested English version differs from the original Dutch text, there would have to be consultation about that. Below you’ll find a detailed explanation of the specific revisions.

original	Voor bepaalde zaken kan ABC rechtstreeks contact opnemen met de houder (bijvoorbeeld in geval van een verzoek tot beëindiging van eenabonnement).
translation	Under certain circumstances, ABC needs to make direct contact with a registrant (e.g. if a request to terminate a registration is received).
revision	ABC may contact a registrant directly. [About the missing text, see the first comment above.]

original	De houder wijst een administratief contactpersoon (admin-c) aan met wie ABC in deze situaties contact kan opnemen.
translation	To make this possible, every registrant needs to nominate an administrative contact person (admin-c).
revision	The registrant must designate an administrative contact person (“contact”) that ABC can contact in these situations.

original	Deze administratief contactpersoon vertegenwoordigt dan de houder.
translation	The administrative contact person acts as the registrant’s representative.
revision	This contact then represents the registrant.

original	De houder zorgt ervoor dat de administratief contactpersoon bereikbaar is op het e-mailadres dat in de administratie van ABC staatvermeld.
translation	The registrant has to ensure that the administrative contact person may be contacted at the admin-c e-mail address recorded in ABC’sdatabase.
revision	The registrant must ensure that the contact can be reached at the e-mail address recorded in ABC’s records.

original	Alle berichten van ABC die zijn verzonden naar het e-mailadres van de administratief contactpersoon worden geacht te zijn ontvangen doorde houder.
translation	All communications sent to the e-mail address in question are assumed to have been received by the registrant.
revision	There is [a presumption/an irrebuttable presumption] that all communications sent by ABC to the contact’s e-mail address are received by the registrant.

original	Bij het aanvragen van een abonnement dient de houder dan ook het e-mailadres van een administratief contactpersoon op tegeven.
translation	When applying to register, a prospective registrant therefore has to give the e-mail address of an administrative contact person,
revision	In the registration application, the registrant must therefore provide a contact’s e-mail address.

original	ABC neemt die gegevens op in de administratie.
translation	which ABC records in its database.
revision	ABC records this information in its records.

Greg Korbee (Originally published August 2014. Republished April 2019.)

Drafted clause makeover #3