涉外合同的英语语言特色.doc

中国最大的论文知识平台中国最大的论文知识平台 摘摘 要要 实务中有不少涉外经济合同纠纷是因各方对合同文字的理解不一而引起的,究 其原因,主要是起草者对合同语言的特殊性缺乏应有的了解,结果导致合同语言的 模糊性和不确定性。本文从词法、句法及应用等三个层面对英文经贸合同语言的 特殊性及其变化规律进行探讨,以期能有助于对此类合同的阅读和起草。 关键词：涉外合同；语言特征；阅读和起草 中国最大的论文知识平台中国最大的论文知识平台 ABSTRACT In practice, the occurrence of inconsistency in interpretation of the contract English has resulted in a good few cases of disputes. In essence, it is largely due to the draftsmans failure to have a deep-in understanding of the underlying features of the contract language, which might lead to the ambiguities and uncertainties of the contract wording. This paper tries to analyze the linguistic features of English business contracts at the morphological, syntactical and discourse levels respectively with a view to rendering a help in the reading and drafting the contracts. Keywords：contract English ; language features; reading anddrafting 中国最大的论文知识平台中国最大的论文知识平台 Contents 1. Introduction1 2. Literature review2 2.1 Study of contract2 2.2 Study of legal English3 2.3 Study of contract English.3 2.4 The study of the stylistic features of contract English in China 4 3. The language features of contract English.6 3.1 The lexical features6 3.1.1 Formal words 6 3.1.2 Archaic Words 7 3.1.3 Synonyms8 3.1.4 Abbreviations8 3.2 The syntax features 9 3.2.1 Active voice 9 3.2.2 Present tense10 3.2.3 Shall+verb.10 3.3 The sentential features11 3.3.1 Declarative sentences11 3.3.2 Long sentences12 3.3.3 Conditional clauses .13 4. Implications 15 4.1 Implication for reading contract English15 4.2 Implication for drafting contract16 5. Conclusion.17 Acknowledgements.18 References.19 中国最大的论文知识平台中国最大的论文知识平台 1. Introduction Language is much more than merely a means of communication. It is also a way of signaling, consciously or unconsciously, that we come from a particular area, or belong to a certain social group.151 Every field of expertise develops its own language features.236 The language of English used in contracts, or contract English, is an important branch of legal English. Legal English means the language of the law of England, America, and some other countries whose official language is English. These common law system countries have a history about several hundred years to express law in English. Legal English is a type of legal language with overlap of linguistics and the science of law. 36 With Chinas carrying out the policy to promote reform and opening to the outside world, the establishment of market economy, the rapid development of our communication with foreign countries and Chinas entry to the WTO, there are more and more opportunities for us to communicate with those countries whose official language is English. When communicating with individuals, legal persons or other organizations from the English speaking countries, we often need to sign English contracts with them. Contract plays an important role in international economic and trade activities, as all achievements thereof will be finally embodied in it. How to correctly draft and understand contract language is of great importance to individuals and business organizations. There are a few books and papers dedicated to general principles of stylistic features of English for law, but none addresses questions of contract English in sufficient detail to be of significant practical use to the English contract learners in China. My dissertation attempts to present a comparatively detailed analysis of stylistic features of contract English with the expectation to better help contract learners or businessmen understand and draft English contract. 中国最大的论文知识平台中国最大的论文知识平台 2. Literature review 2.1 Study of contract Contract English, like English as a whole, is not static. It has undergone and is still undergoing enormous changes. The definition of contracts given by Karla C. Shippey4155: A Commercial Contract, in simplest terms, is merely an agreement made by two or more parties for the purpose of transacting business. In the eye of scholars the word contract is used in common speech, which simply refers to a writing containing terms on which the parties have agreed. Contract is often used in a more technical sense to mean “a promise, or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty.“ Put quite simply, a contract is an agreement which the courts will enforce. 55 A contract, in the simplest definition, is a promise enforceable by law. The promise may be to do something or to refrain from doing something. The making of a contract requires the mutual assent of two or more persons, one of them ordinarily making an offer and another accepting. If one of the parties fails to keep the promise, the other is entitled to legal recourse against him. The law of contracts has to do with such questions as whether a contract exists, what the meaning of it is, whether a contract has been broken, and what compensation is due the injured party.66 Many contracts use the word agreement in the title. In some contexts the two words, contract and agreement, are synonyms and can be used interchangeably. While contract and agreement may both be used to mean a formal and legally enforceable arrangement, agreement may also refer to an informal arrangement not supported by consideration, such as an agreement between friends to play tennis on Saturday morning. So an agreement is really the main ingredient of a contract. But it is not every agreement that becomes a contract. To be a contract, that agreement must be enforceable in taw. 中国最大的论文知识平台中国最大的论文知识平台 2.2 Study of legal English When we move into the domain of legal English, we must consider another continuum, the so-called general English. What precisely is general English is difficult to define. The concept is often left unspecified and regarded as an implicit norm, apparently based on intuitive knowledge of what is common use.712 Special English, of which legal English is one example, is often understood as being in some significant respects deviant from general English.Thats to say, legal English is based on the general English with its own stylistic features. More recently, some linguists have begun to analyze certain language varieties in terms of sublanguages. One definition of this term is a “language used in a body of texts dealing with a circumscribed subject area in which the authors of the documents share a common vocabulary and common habits of word usage，The term carries with it the idea that the sublanguage is a subset, or part, of the language as a whole. Some characteristics that have been attributed to sublanguages include: they have a limited subject matter; (2) they contain lexical, syntactic, and semantic restrictions; (3) they allow “deviant“ rules of grammar that are not acceptable in the standard language; and (4) certain constructions are unusually frequent.1142-143 Most of these features seem to apply to legal English so we can also say that legal English is a sublanguage of English. 2.3 Study of contract English Generally speaking, contract English is an important branch of legal English, which is the language of the contract of England, America, and some other countries whose official language is English. Since English is universally accepted as a commercial language, it is a usual practice in our foreign trade to conclude contracts in both English and Chinese languages; that is first to draft a contract in one language and then to render it into the other. There are a number of worthwhile guides to forensic linguistics in general, given their broad scope they are of great help to the English contract learners. Lord Mansfield83, one of the most famous English judges, once observed that “most of the 中国最大的论文知识平台中国最大的论文知识平台 disputes in the world arise from words“. He told us the significance of language. If one can command contract English quite well, it may be easier for him to read the English contract. It is highly possible that he could study and understand English contracts better than those who know little about contract English. A contract refers to an agreement establishing, modifying and terminating the civil rights and obligations between subjects of equal footing. The language for contract is different from that for basic English or literature. In the Five Clocks, the American linguist Martin Joos936 advances the five stylistic varieties in English: the Frozen Style, the Formal Style, the Consultative Style, the Casual Style and the Intimate Style. The style of Contract English can be considered as the first one, which is the Frozen Style because the language habits of the profession cause lawyers (contract drafters) to frequently choose one means of expression over other possibilities. There are a few books and papers dedicated to general principles of stylistic features of English for law, such as the fields main journal, Forensic Linguistics8, books as Investigating English Style written by David Crystal10 , The Elements of Legal Style written by Bryan, A. Garner11, so on and so forth. 2.4 The study of the stylistic features of contract English in China For many years, the study of the stylistic features of contract English is limited. In our country, there are few books or articles talking about the language of contract. However,with Chinas carrying out the policy to promote reform and opening to the outside world and Chinas entry the WTO, there are more and more opportunities for us to communicate with those countries whose official language is English. When communicating with people or other organizations from the English speaking countries, we often need to sign English contracts with them. English contracts are becoming more and more important in our daily life. And people began to do more study on contract English.The language of contracts is not easy to understand. Wu Weiping 12 points out, “Most people know it difficult reading legal documents(in a narrow sense). In fact non- legal documents like contracts, trade brands are also difficult to read.” Due to the importance of contracts and difficulty of contractual language, more and more people have been turning their attention to them. Many school students, especially those majoring in business English are learning English of contracts and at the same time many scholars take profound interest in the study it. Many books and articles are 中国最大的论文知识平台中国最大的论文知识平台 published and provide assistance in students learning of the variety of English. Chen Jingying13 describes the syntax features of the contract English. Hu Genshen14 points out that many Latinate words are adopted in every possible case to replace synonyms of ordinary English to display formality and preciseness. Besides, Liao Yin6 says that in business contracts, complicated prepositional phrases are often used insteadof ordinary ones. For example, the participants in the joint ventures shall commence discussion with regard to the extension of the period of existence of the venture and in the event of their agreeing upon such extension, they shall record such agreement in a written document signed by all of them not later than three years prior to the expiry of the current period.According to Fu Weiliang15，long sentences in English business contracts can define the rights and obligations of the concerned parties in an exact way, thus avoiding any possible misunderstanding and ambiguity. 中国最大的论文知识平台中国最大的论文知识平台 3. The language features of contract English English is now established as the leading international language. Legal English, as everybody knows, is playing a significant part in our Chinese peoples life. With the development of the technology and economy and with the deepening of the policy of opening door to the outside world, frequent foreign exchanges and business transactions are increasing day by day between China and foreign countries. Inter-personal and inter- entity relations involved have to be defined and bound by contracts. In the business field, the staff concerned is required to execute the contract to cooperate with the foreign transactions. Thus, we can succeed in building our country into a prosperous one. One of the keys to the better command of contract is to acquire a deep and comprehensive realization of its stylistic features. Based on studies done by home and abroad researchers, the following part is trying to present a relatively comprehensive analyisis on the stylistic features of contract English. 3.1 The lexical features The goal of contract English is not the beautiful language, but the precise logic and professional statements, as well as clearly and rational thinking. The lexicon of contract English contracts is characterized by precision, formality and clarity. This part, based on the analysis of typical examples, attempts to explore English contracts from the aspects of formal words, archaic words, synonyms and abbreviations. 3.1.1 Formal words Formal words also called as literary words or learned words, mainly appearing in formal writings, such as theoretical works, formal addresses and legal documents. Compared with general English, contract English is very formal. There are a lot of formal words, which are rarely used in general English, but used in contract. Here we list just a small sampling: 中国最大的论文知识平台中国最大的论文知识平台 Formal Words Informal Words Purchase Buy Modify/alter Change Terminate End Proceed Go Render Make Commence Start/begin Approximately About Demonstrate Show Notify Tell 16322 In the following three sentences, commence, terminate, at the commence of, upon the completion of, with regard to, in the event of, prior to mean respectively: begin, end, at the beginning of, at the end of, about, in case of, before. The former words are more formal than the latter ones, which make the contract sound formal. (1) The Agreement shall commence on this day and automatically terminate upon the bankruptcy or insolvency of either of the parties hereto. (2) Party A shall pay to Party B forty per cent of the total price for work, i.e., two hundred and eighty thousand (280,000.00) U.S. dollars only at the commence of construction work of Party As plant; and sixty per cent of the total price for work, i.e., four hundred and twenty thousand (420,000.00) U.S dollars only upon the completion of the work. (3) The participants in the Joint Venture shall commence discussion with regard to the extension of the period of existence of the Venture and in the event of their agreeing upon such extension, they shall record such agreement in written document signed by, all of them not later than three years prior to the expiry of the current Period. 3.1.2 Archaic Words Contract English has long been featured by a prominent archaic trait: words composed by “here“, “there“ and “where“ followed by one or several propositions. In these words, “here“ means “this“, “there“ equals “that“, while “where“ refers to “what“ or “which“. For example: Archaic words Modern meaning 中国最大的论文知识平台中国最大的论文知识平台 Hereafter After this Hereby By means of this/By that means Hereof Of this Hereinafter Later in this contract Thereafter After that Thereinafter In that part of contract Whereof Of which Whereby By what; by which16365-366 Look at the following sentence: The parties to the contract shall, in accordance with the principle of good faith, execute the rights and perform the obligations hereof.1742. The contract is not defensible and is in danger of leaks without “hereof “. The word “hereof “leads to economy of expression since it replaces the longer phrase “of the contract“ in the example to modify and limit “rights and obligations“. 3.1.3 Synonyms Using synonyms in legal English occurs very often. The purpose of this kind of use is not only to respect the tradition, but also to seek exactitude and completion of meaning. As it has been mentioned by many linguists, legal English adheres much to tradition. There are many more such synonymous pairs: terms and conditions, settle claims and debts, import duty and tax, customs and usages, missing and disappeared person, willful and malicious injury, elderly and aged, able covenants, libel and slander, goods and chattels, etc. For examples: (1) They declared the contract null and void. (2) The packing and wrapping expenses shall be borne by the buyer. 3.1.4 Abbreviations When draftsmen draft contract, they use lots of abbreviations in order to make full use of simple, quick and efficient method to rush at the commerce opportunity. Therefore, the use of abbreviations is becoming wilder and wilder and the scope is 中国最大的论文知识平台中国最大的论文知识平台 larger and larger. We can find abbreviations in everywhere such as politics, economy, trade, law, transportation, insurance for the sake of expressing more conveniently. Generally speaking, abbreviations are capitalized. In drafting contract, abbreviations prove to be helpful for spelling but at the same time cause the trouble in understanding. Abbreviations are typical features of business contract. In our samples, we have many: (1) The price shall be based on CIF basis. (CIF= Cost, Insurance, Freight) (2) In case by M/T or T/T. (M/T=metric ton) (T/T= telegraphic transfer) (3) On FOB-basis. (FOB= free on board) (4) W.P.A. (WRA= with particular average) (5) L/C. (L/C= letter of credit) 3.2 The syntax features 3.2.1 Active voice We can easily find that active voice is the dominance in foreign contract. In foreign contract, active voice is a very striking feature. Because contract is an agreement, enforceable by law between two or more people or groups. Foreign contract also se