We’ve blogged about court translations and legal translations in the context of cross-border contract law. According to one of the basic laws of contracts, “the formation of a contract requires… a manifestation of mutual assent to the exchange.” When determining whether this requirement has been met, courts use an objective theory. However, as contracts now span international borders and incorporate various languages, the validity of the objective theory is being challenged.
Take, for example, an individual who signs a contract that is in a language they do not understand and for which no foreign language translation is provided. In such a situation, under the objective theory, a party will be bound to the contract’s terms when the other party can reasonably regard the signing party’s outward manifestations as an assent to the terms.
Yet, realistically one cannot regard these manifestations as an assent when he or she subjectively knows the signing party means otherwise. For this reason, the objective theory is based on the circumstances present between the parties at the time of the signing.
Surprisingly, courts refuse to hold that the application of the duty-to-read standard to non-English speakers is an outdated application of the objective theory of contracts. This is absurd as the offering party is likely to know that the signing party cannot understand the terms and thus the offering party cannot reasonably believe the signee’s signature is a manifestation of assent. Regardless of the current interpretation of the law, it is advised that a foreign language translation is always provided or requested in such situations.