| Pages in topic: < [1 2 3] > | Help with understanding legalese/legal impacts (liability; agency's SLA) Thread poster: Nina Esser
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Samuel Murray 
Netherlands
Local time: 02:29
Member (2006)
English to Afrikaans
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| The big problem here | Feb 28, 2018 |
Nina Esser wrote:
The Contractor shall undertake to comply with all laws and regulations that in any way pertain to his translation services and shall save [client] harmless from all claims that may arise from a breach or violation of the aforementioned regulations and provisions on the part of the Contractor.
This is the big problem right here. There is no way for the translator to know in advance which laws and regulations all apply to his translation, and therefore this clause exposes the translator to an unknown, uncontrollable risk.
In this clause, the translator is promising to pay all of the client's expenses, legal fees and fines (if any) if it turns out that some law somewhere in the world applies to the translation and it initially appears that that law have been breached (even if it turns out, later, that the law wasn't actually breached).
In my opinion, it is the client's responsibility to check whether any laws apply to the text (and to it's translation). Yes, the translator is ethically bound to inform the client if he (the translator) is aware of any legal conflicts, but the translator should not be liable for any claims regarding such conflicts.
The translator is hired for doing a translation (for he is qualified to translate), but supplying an expert opinion about the legality of the translation is not included in the service (the translor is not qualified to offer such a service anyway).
This clause also applies to the issue of whether any regulatory fees are applicable to the translation and whether those fees have been paid. The clause is unclear about whether the translator should pay such fees (I'm sure a judge would rule that the client himself is responsible for paying them), but the clause does mean that if the client had neglected to pay such fees, then the translator is financially responsible for the consequences.
[Edited at 2018-02-28 11:29 GMT]
| | | | Samuel Murray
Netherlands
Local time: 02:29
Member (2006)
English to Afrikaans
+ ...
| On "minor" negligence | Feb 28, 2018 |
Nina Esser wrote:
The Contractor shall be liable for all damages that he or his assistants or agents causes or cause for [client] as part of their activities. Liability in the event of minor negligence shall be limited to the simple value of the assignment.
I'm not familiar with the concept of "minor negligence". From what country is the client? I know of "gross", "ordinary", and "professional" negligence, but not "minor" negligence. I assume (as do you, probably) that "minor" negligence is not "gross", but is the client using the term "minor" here to mean "ordinary", or does he mean something else (which may not even have a legal definition)?
Also, different countries' laws interpret negligence in different ways. The distinction between gross and ordinary negligence is much greater/clearer in the USA than in e.g. the UK, where much less of a distinction is made between gross and ordinary negligence (i.e., in the UK, negligence is negligence).
Remember, "minor negligence" is not the same as "a minor error". You can commit a minor deviation and still be guilty of gross negligence.
The second sentence in that clause doesn't really limit the ambit of the first sentence. The clause essentially says "if a judge rules that the negligence was minor, then the translator only forfeits his pay, but in all other cases the translator promises to pay everything for everything". I would cross out the first sentence.
[Edited at 2018-02-28 11:50 GMT]
| | | | Nina Esser
Germany
Local time: 02:29
English to German
TOPIC STARTER | Amended clause | Feb 28, 2018 |
The client got back to me suggesting to amend the first clause as follows:
Notwithstanding anything to the contrary, except in case of willful misconduct or gross negligence, Service Provider's entire liability to [client] for damages or other amounts arising out of or in connection with the Services provided by Service Provider hereunder shall not exceed the total amount of payments made by [client] to Service Provider for the job in question under this Agreement.
... See more The client got back to me suggesting to amend the first clause as follows:
Notwithstanding anything to the contrary, except in case of willful misconduct or gross negligence, Service Provider's entire liability to [client] for damages or other amounts arising out of or in connection with the Services provided by Service Provider hereunder shall not exceed the total amount of payments made by [client] to Service Provider for the job in question under this Agreement.
While I appreciate their willingness to discuss the matter, I'm wondering - doesn't the revised clause basically say the same thing as the old one?! Or am I missing a detail in the legalese that would now, in the revised version, limit my liability in the case of gross misconduct?
Samuel, I was hoping that the second clause I quoted might just refer to things like paying taxes... Do you recommend to have such clauses removed from translation contracts altogether, or is there an acceptable, alternative version? I always find it much easier to suggest an alternative than requesting to have entire clauses crossed out.
[Edited at 2018-03-01 14:17 GMT] ▲ Collapse
| | | | | At least in isolation, the new clause sounds very good | Feb 28, 2018 |
The wording of the new clause seems extremely freelancer-friendly.
I don't think you even can limit your liabilty in the case of wilful misconduct (e.g. doing your translation while drunk) or willful misconduct (e.g. doing your translation on a smartphone, with it more or less accurately completing your words for you) - and any client who agreed to not hold you accountable in those situations would be crazy.
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Samuel Murray wrote:
this clause exposes the translator to an unknown, uncontrollable risk.
Does it, though?
Aren't there rules on unreasonable contract terms?
Don't the courts apply common sense?
Aren't we then exposed to "an unknown, uncontrollable risk" anyway every time we take work from a client who doesn't make us sign an agreement?
Is negligence based on the severity of the error or the severity of the consequences?
Could not any mistake we make be considered negligence?
Conversely, does the law really expect professionals to be *perfect*?
So many questions...
| | | | | Post removed: This post was hidden by a moderator or staff member for the following reason: Unedited since 4 days | Sheila Wilson
Spain
Local time: 01:29
Member (2007)
English
+ ...
| Judges don't just read contracts | Feb 28, 2018 |
Chris S wrote:
Aren't there rules on unreasonable contract terms?
Don't the courts apply common sense?
The only client I ever took to court had made me sign an agreement. It said I wouldn't be paid until the job (an EFL course) was completed. It never was, as the student cancelled part-way through. They refused to pay unless I taught someone else, in the evening, a long way from home. The court - in France - ruled that it was an abusive clause, I got every centime plus interest, and they ended up paying at least double the invoice amount as they had all the costs to pay too. A great day for justice  !
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Andy Watkinson wrote:
I've signed dozens of documents like this, some of which I didn't even bother to read for the simple fact that I've never heard of a single case of a translator being sued. Not one in 40 years. Not saying it's impossible. Neither is being struck by lightning.
I think this fear of being struck by lightning comes from this kind of thinking:
"...it's in a contract you're signing."
And I think these unreasonable SLAs/NDAs do exist and persist and are so common in the industry precisely because (too) many freelancers just sign away whatever they're presented with, sometimes without even reading(!). As for suggesting that it's OK to accept whatever clause (including unlimited or near-unlimited liability) because no one will likely try to have it enforced in a court of law, well... O_o
Regarding your 'I've never heard of a single case of a translator being sued', where do you imagine such cases (similar to this or this) would be "advertised" and "filed" for easy perusing, and by whom? (And that would obviously not take into account out-of-court settlements.)
BTW, though statistically useless(?), someone did bother to invent the lightning conductor...
[Edited at 2018-02-28 14:03 GMT]
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| Going to court | Feb 28, 2018 |
Sheila Wilson wrote: The only client I ever took to court had made me sign an agreement. It said I wouldn't be paid until the job (an EFL course) was completed. It never was, as the student cancelled part-way through. They refused to pay unless I taught someone else, in the evening, a long way from home. The court - in France - ruled that it was an abusive clause, I got every centime plus interest, and they ended up paying at least double the invoice amount as they had all the costs to pay too. A great day for justice !
IMO going to court is, in and of itself, a defeat, in terms of time, costs, stress, etc., irrespective of the final verdict.
| | | | Sheila Wilson
Spain
Local time: 01:29
Member (2007)
English
+ ...
| Going to court is a nuisance, I agree, but a defeat??? | Feb 28, 2018 |
Mirko Mainardi wrote: Sheila Wilson wrote: The only client I ever took to court had made me sign an agreement. It said I wouldn't be paid until the job (an EFL course) was completed. It never was, as the student cancelled part-way through. They refused to pay unless I taught someone else, in the evening, a long way from home. The court - in France - ruled that it was an abusive clause, I got every centime plus interest, and they ended up paying at least double the invoice amount as they had all the costs to pay too. A great day for justice ! IMO going to court is, in and of itself, a defeat, in terms of time, costs, stress, etc., irrespective of the final verdict.
I can't see how it can be considered a defeat, Mirko. It's certainly to be avoided whenever possible and I'm glad I've only had to do it once in 20 years. Those particular circumstances wouldn't re-occur as I'm more careful when checking contracts nowadays. But some clients will try every trick in the book to wriggle out of payment. In those cases, wringing payment out of them is most certainly a victory rather than a defeat. I'm lucky in being able to afford to pick and choose my clients nowadays, and maybe you are too, but not all freelancers have that luxury.
| | | | Andy Watkinson
Spain
Local time: 02:29
Member
Catalan to English
+ ...
Mirko Mainardi wrote:
Regarding your 'I've never heard of a single case of a translator being sued', where do you imagine such cases would be "advertised" and "filed" for easy perusing, and by whom? (And that would obviously not take into account out-of-court settlements.)
So basically you're asking how I could possibly know about such a case if it existed.
Well, you've got me there, unless you think 40 years of experience in translation circles might be a good place to start.
To take just one example, here on ProZ translators tell me about their work, neighbours, work routine, their cats, dogs et al., their favourite brand of coffee, the music they like, what they wear for breakfast, their illnesses, family, their divorces, holidays, their clients, their complaints, their billing system, marketing, non-paying clients....etc..........
Never heard of anyone being sued. Have you?
No. I thought not.
| | | | Samuel Murray
Netherlands
Local time: 02:29
Member (2006)
English to Afrikaans
+ ...
Nina Esser wrote:
The client got back to me suggesting to amend the first clause as follows:
Notwithstanding anything to the contrary, except in case of willful misconduct or gross negligence, Service Provider's entire liability to [German agency] for damages or other amounts arising out of or in connection with the Services provided by Service Provider hereunder shall not exceed the total amount of payments made by [German agency] to Service Provider for the job in question under this Agreement.
I'm no lawyer and I have no knowledge of German law except what google happens to spit out, but preliminary googling appear to show that in German law, the expression "gross negligence" has an actual meaning, and its meaning is akin to recklessness.
So it would seem, based on some [very unreliable] googling that the clause is now somewhat safer than it used to be, although if you adhere to the ideology of "never accept unlimited liability", then it's still not 100% safe. However, dealing with such contracts is (in my opinion) a matter of weighing the risk, and I personally would sign the contract at this point because the events would indicate to me that the risk is in fact quite low.
I was hoping that the second clause I quoted might just refer to things like paying taxes...
I suspect agency PMs often think so too. However, the expession "hold harmless" means "I promise to pay all [reasonable] costs, including related costs, including the agency's lawyer's fees, regardless of who's at fault, and regardless of whether it turns out that anyone is actually at fault". That is not the same as saying "I promise to pay all taxes that have to be paid".
I always find it much easier to suggest an alternative than requesting to have entire clauses crossed out.
I find it easier to cross out sections altogether. I suspect it often means less hassle for the client, because presumably his supervisor would often be more willing to accept or reject such a change without thinking it necessary to run the updated wording by the company's lawyer.
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Samuel Murray
Netherlands
Local time: 02:29
Member (2006)
English to Afrikaans
+ ...
Chris S wrote: Samuel Murray wrote:
This clause exposes the translator to an unknown, uncontrollable risk. Does it, though? Aren't there rules on unreasonable contract terms? Don't the courts apply common sense?
Saying that courts apply common sense is not the same as saying that courts always tend to protect the little guy. Especially if the little guy was caught making an outrageous promise. The promise I'm talking about is "dear business owner who stands to lose a lot if I screw up, I promise to pay for all your losses in case I do screw up".
It is true that courts can rule that certain contract conditions are so unreasonable that they are unenforceable, but that does not mean that they regularly make such a ruling. And it is true that there are rules about unreasonable contract terms, but those rules apply mostly to consumer matters (not business-to-business matters).
And no, courts do not apply common sense, particularly not in routine matters. They apply the law and they do it in the way that the law has been applied in that jurisdiction for many years. Otherwise e.g. foreclosures (i.e. when honest, hard-working home owners are temporarily unable to pay some of their mortgage payments) would be rare thing.
Aren't we then exposed to "an unknown, uncontrollable risk" anyway every time we take work from a client who doesn't make us sign an agreement?
If you accept work without having signed a contract, then your country's general rules on handshake agreements apply.
Besides, what I mean when I use the word "uncontrollable" is that sometimes things can go wrong but it's not your fault and you could not have prevented them. If you sign a hold harmless clause, you're making a promise to be responsible for those things as well (things that went wrong due to other reasons than your own negligence, stupidity, or ignorance).
In any business contract, there is risk, but sometimes one party prefers to have less risk, and so they try to shift some of the risk onto the other party. If the other party agrees to take on this extra risk, and they were no coerced, then that is not unfair, even if the extra risk is equal to that party's entire estate. The agency doesn't want the risk, so they shift the risk onto the translator.
Bankruptcies do occur often and regularly. No court is going to say "oh, well, the other party should have known that this risk is very great, therefore we are not going to enforce this contract".
Is negligence based on the severity of the error or the severity of the consequences?
Could not any mistake we make be considered negligence?
Conversely, does the law really expect professionals to be *perfect*?
I know very little about negligence except that it doesn't always follow common sense. If a bee flies into your car and stings you in the eye and you crash the car, were you somehow negligent? Remarkably, a court said "yes".
[Edited at 2018-03-01 10:17 GMT]
| | | | Kay Denney
France
Local time: 02:29
French to English
Nina Esser wrote: @Texte Style, like Tania I'd really like to read up on the lethal translation error you mentioned. I've been telling my husband only today that there has never been a case of serious consequences because of a translation error, at least none that would justify a law suit  [Edited at 2018-02-27 22:58 GMT]
I just googled and found nothing, but I'm pretty sure I read about it here, since I don't get translation news from any other source. Maybe if you search the translation news section? sorry I don't have time
Anyway, even if it were not true, it's still possible. I remember at the agency I used to work at, an Italian translator made nonsense of a sentence by translating "la nouvelle donne" (=a new paradigm) as "the new lady", in a file that was printed in an exhibition catalogue. It wasn't as serious, nobody died, but the client printed up 20,000 copies before anyone caught the mistake. So they had to print it up again. The agency paid for the second print and was reimbursed by insurance.
| | | | Kay Denney
France
Local time: 02:29
French to English
Andy Watkinson wrote:
Never heard of anyone being sued. Have you?
No. I thought not.
A translator giving their real name on Proz would never want to admit to going to court over a mistake they made in their translation. Their reputation would be in tatters. Unlike Sellafield, a translator can't just change their name when there's too much bad publicity.
I remember one translator who actually created a second profile to be able to discuss a problem because they were at fault and they didn't want anyone to associate that fault with their name. They then got caught out answering questions from their usual profile and the thread suddenly disappeared. It's complicated trying to be schizo when you're not really!
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