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Can I have a Chinese contract?

Can I have a Chinese contract?

Can I have a Chinese contract? 合约是否能以中文起草?

Contracts are a great way to manage relationships and risk. Getting parties to sign a contract before starting business helps to pre-empt disputes by making rights and obligations clear, and also getting parties to manage their disputes by less adversarial means. A careful businessman naturally wants to know what he is signing up for, and naturally a Chinese-speaking party might ask for a contract written in Chinese. But is it worth the time and effort?

By default, someone who signs an agreement is bound by the terms and conditions stated in it. However, some parties may attempt to free themselves of the contract by claiming that they did not understand the contents, or that they did not understand the effect of the contract - the common law defence of non est factum. Although this defence rarely succeeds, some people will just want to try their luck. Having the contract in a language which they are literate in helps to pre-empt such a defence and reduces the scope of a contractual dispute.

Aside from the legal advantage, a practical consideration is in building trust between the parties. For a Chinese party who does not know much about the Singaporean legal system and its substantive rules, presenting a Chinese contract gives them the confidence that they will know what they're getting into, and that the presenting party is not trying to hide anything behind a wall of English text. A relationship with a good start also helps when parties later disagree, since it's much easier to convince both sides to continue working together if there is a relationship to preserve.

On the other hand, there may be procedural difficulties if the agreement is only in Chinese:

  1. The court will want the agreement to be translated in English. That leads to additional translation costs, and sometimes the dispute gets escalated when both sides have a different translation and then the respective translators have to be called as witnesses, which then has the effect of prolonging the trial process. So why incur the initial cost of writing it in Chinese, only to have it translated back into English?
  2. Certified translators or multilingual persons will know that some words do not translate well because there is no exact equivalent. In a similar vein, parties coming from different countries would likely be governed by different laws and therefore would find certain Singaporean or common law legal concepts alien. For example, the English concept of equity has no equivalent in Chinese law, and a direct translation of "equity" into the phrase 平衡法 does nothing to help the Chinese reader understand the consequences of preserving equitable remedies.
  3. In a similar vein, some words can be translated in several different ways. In the absence of a commonly accepted Chinese legal vocabulary for common law or local statutory concepts, there may be different terms used by individual lawyers or translators but which relate back to the same concept.
  4. Some Chinese parties may want to include references to foreign legal concepts to make up for a perceived imbalance or disadvantage when it comes to contracting under an unfamiliar legal system. However that increases the cost of litigation, because then parties would need to introduce expert evidence on foreign law.

One way to mitigate these issues is to draft the contract in both English and Chinese, but with the English version to take precedence. This retains the advantage of both helping the Chinese-speaking party understand the contract, but yet reduce the cost of adversarial dispute resolution. Although this may increase the upfront cost of preparing the contract, it will reduce the time and money cost pressure if a dispute arises in the future.

Having said that, a good contract helps to make sure that parties are of one mind before they start working with each other. Having it in different languages helps to bridge the gap in a different way, as long as the necessary precautions are taken to avoid misunderstanding.

Considering a bilingual contract or contracting with Chinese parties? Email me (boongan@lawfirm.com.sg) or send a LinkedIn message (to Boon Gan Ng) to get started.

合约应当清楚地分配双方的义务、权利,能减少引起纠纷的机率,或者以非对立的方式解决纠纷。签署合约前应当充分了解条例,而如果一方不精通英语,就自然要求合约以中文起草。

中文的合约能防止一方以不了解内容作为不赴约的根据。一般,一方签署了合约,就必须遵守条例,除非他能证明在签署时不了解合约的用意。虽然法院不经常接收类似的理由,但为了避免对方提出此借口,可翻译合约。

除此之外,提供翻译的合约能提高双方之间的信任,尤其当对方不熟悉法律规则或系统。当纠纷引起时,如果双方之前有良好的关系,也会倾向维持关系,继续与对方来往、合作。

但是,在起草中文合约之前,应当考虑以下问题:
  1. 在诉讼的情况下,法院会要求合约经过英语转译,造成起诉方承担多余的费用。如果被告对翻译不满,可提供另一份转译。一旦有了不同版本,双方聘请的翻译员必须提供口证,经过对方律师拷问,造成审讯的拖延。
  2. 某些词汇是无法完全翻译,况且各国的法律概念不一致。即使合约的内容能直译,但对方不一定能完全了解原本词汇的含义。
  3. 即使概念相似,翻译员可能用不同词汇。若需要把合约翻译英语,可能造成不同版本的问题。
  4. 如果合约包括国外法律条令或概念,法院会要求双方聘请法律专家,造成双方付出额外的费用。

为了避免以上问题,可用英、中文起草双语合约,但以英语版本为主。这能让双方以自己熟悉的语言了解合约的内容,同时避免诉讼时负担额外费用。虽然会增加启超费用,但能减少未来必须花费的金钱与时间。

总而言之,为了让合约使双方提前达成共识,可通过是适当的翻译让双方更深刻地了解合约的义务与权利。多语言合约能减少误解产生的机率,同时促进双方合作的精神。

需要英中双语的商业合约?不妨通过电邮 (boongan@lawfirm.com.sg) 或 LinkedIn (Boon Gan Ng) 与我联系。

Need Help With A Legal Dispute? 需要关于解决纠纷的法律咨询?

If you have any questions relating to business dispute prevention or how to settle a business dispute in Singapore, feel free to email or drop me a LinkedIn message. I will do my best to respond within 24 hours.

Or leave a message here (your personal particulars will not be shared with third parties without your permission).

若有关于商业纠纷防范、和解方案的疑问,可通过电邮或LinkedIn联系。我会尽量在24小时之内回复。

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Need Help With A Legal Dispute? 需要关于解决纠纷的法律咨询?