涉外合同的英语语言特色
A STUDY ON LANGUAGE FEATURES OF CONTRACT ENGLISH
摘 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
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 draftsman's 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
Contents
1. Introduction 1
2. Literature review 2
2.1 Study of contract 2
2.2 Study of legal English 3
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 features 6
3.1.1 Formal words 6
3.1.2 Archaic Words 7
3.1.3 Synonyms 8
3.1.4 Abbreviations 8
3.2 The syntax features 9
3.2.1 Active voice 9
3.2.2 Present tense 10
3.2.3 Shall+verb 10
3.3 The sentential features 11
3.3.1 Declarative sentences 11
3.3.2 Long sentences 12
3.3.3 Conditional clauses 13
4. Implications 15
4.1 Implication for reading contract English 15
4.2 Implication for drafting contract 16
5. Conclusion 17
Acknowledgements 18
References 19
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.[1]51 Every field of expertise develops its own language features.[2]36 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. [3]6
With China's 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 China's 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.
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. Shippey[4]155: 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. [5]5
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.[6]6
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.
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.[7]12 Special English, of which legal English is one example, is often understood as being in some significant respects deviant from general English.That's 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.[1]142-143 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 Mansfield[8]3, one of the most famous English judges, once observed that "most of the 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 Joos[9]36 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 field's main journal, Forensic Linguistics[8], books as Investigating English Style written by David Crystal[10] , The Elements of Legal Style written by Bryan, A. Garner[11], so on and so forth.
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