Old rope and new liability
So, what about the legal/contractual side of this alleged trend in the industry to pay nothing whatsoever for 100% matches? (See original post here.)
Not all jurisdictions are the same, of course, but this delightful crew are, happily, based in England so I can indulge in some bar-room level speculation. If you’re not getting paid or receiving any other benefit for the work you are providing, then there is no consideration, and if there is no consideration, then there is no contract. I paraphrase, naturally, you can buy whole books on the subject of consideration and contract. I feel I should point out that I am aware that plenty of jurisdictions have no such concept, including our near neighbours Scotland and France, and that there are those who feel that not all contracts actually need a consideration aspect. There is, therefore, an element of mischief in the following…
Anyway, obviously, ALS would probably argue that the purchase order is an overall price for an overall delivery of documents, and that is what has been offered and accepted and is being paid for: X words for Y money.
However, one of the reasons I rejected the offer I was made (see above) was in fact that it consisted of several documents, at least one of which was entirely 100% matches/repetitions, in other words, I was going to have to take the time to take a copy of the file and rename it, run it through the TM, save it, make sure the formating was OK, et cetera, et cetera, et cetera., for which I would receive the princely sum of diddly-squat. Not only that, but I would be able to demonstrate, using the CAT analysis and email records, that I had received no payment whatsoever for that particular document, and that the agency specifically, deliberately and expressly intended not to pay me for it. (Apart from the basic objection in principle, I knew that this situation would make it extremely hard for me to find the motivation to make any effort on this document whatsoever).
Under those circumstances – where it is possible to physically distinguish meaningful sections of text that are being paid for from sections that are explicitly not being paid for – what exactly is the legal/contractual situation, I wonder? Because one could rephrase the above proposal, from “X words for Y money”, to “A words for Y money and B words for free” (where A + B = X, naturally) – what then?
I have searched my Contract Law book, and wandered around the internet, to no avail. I have found nothing yet about contracts that include a free component.
Is it then possible then to remove the “B words” from the scope of the contract? If so, what does my supplying that document then become? A favour? Does the translator have any contractual obligations? Is there any enforceability? As long as you deliver the “A words” on time and up to snuff, is that sufficient not to be in breach of contract?
Let us assume for a moment that the free stuff, the “B words”, falls inside the scope of the contract (as no doubt ALS want us to) – what then is the translators liability? We are contractually obliged to provide a decent translation, fit for purpose (your jurisdiction’s wording may vary, but the idea is universal – our output has to be useable). And we have here at least 3 possible scenarios relating to the stuff we are, under this hypothesis, contractually obliged to supply up to a certain quality standard:
i) a document that is 100% matched with a TM populated by someone else’s efforts from prior to this project
ii) a document that is 100% matched with a TM populated by my own efforts from prior to this project
iii) a document that has no matches at the start of the project, but, if I translate other documents first, then becomes a document with 100% matches?
In terms of ii) and iii) I would be happy to assume liability for my previous work, assuming it has not been revised to a lower quality. But what about i) ? We are now in a position where, not only does the “free work” component include the time taken just to ‘deal with’ (so-called ‘ignore’) the text, we really should check it. We are liable for it, are we not?. Unless you reply with a counter-offer declining to be held liable for any of the 100% matches… but if we’re getting into the realms of counter offers…. the world’s your oyster.
And what about liability insurance? Given the propensity of insurance companies to wriggle out of paying indemnities whenever they can, we are surely pushing the boundaries a little here, if those of us with insurance expect to be covered for work we do for nothing?
If, conversely, we assume that, contrary to ALS’ intentions, there is no contractual obligation attached to the free stuff, the “B words”, what then? I wonder here whether the normal concept of the “duty of care” we all owe our fellow citizens as we go about our daily business might apply? In which case, surely, once again, I cannot simply skip over the 100% matches (especially if they are result of someone else’s work) without leaving myself potentially liable?
I don’t really know the answers to these questions. ALS may do. Or may think they do (the joy of the law is that there are two sides to every story and one can usually find some kind of legal justifcation for almost any position one chooses to adopt!). And while this section started as a bit of mischief, and kind of “what if…?” piece, it appears to have reached a potentially serious conclusion.
Well, it has in my view. I like to think I know where I stand when I do pro-bono work or anything else for free (duty of care, and all that). I like to think I know where I stand when I’m doing paid work (contractual obligations, liability limited to cost of the job and/or covered by professional insurance). I’m really not sure where I stand, in any sense, when a purchase order includes both paid and unpaid work. And when I’m not sure where I stand, I prefer to stand elsewhere. Pragmatically, as it were, I prefer not getting involved.
You may or may not agree with the idea of doing work for free (in this case, I don’t; in others, I do), that is your prerogative, of course. And when everything is going swimmingly, there is probably no issue, if you don’t object on principle. But when an agency tries to make some kind of claim against some text you supplied them with as part of a larger job, text that you did not actually translate and did not get paid for… well, rather you than me, that’s all.
(Note: as you can probably tell, I’m not a lawyer. My studies have included legal elements, but no legal qualifications. I am aware that a little knowledge can be a dangerous thing. The above is not intended as legal advice.)
Hi Charlie,
I was going to post a response to your previous post, but you kind of beat me to it by posting this addendum. The point I was going to make is that there is one very good reason why simply allowing a CAT tool to auto-populate a 100% match and not even giving it the most cursory check is dangerous: it is entirely possible for the exact same source segment to appear more than once but to require a different translation each time due to differences in context. Therefore, 100% matches need, at the very least, to be quickly checked to ensure that the translation is still appropriate to the context. Therefore, one should not agree to charge nothing for 100% matches – unless, that is, one is happy to turn in work which may contain inappropriately translated segments.
Hi Rob,
Quite so, I agree entirely. I suspect that many translators would not actually leave such segments untouched, despite not being paid for them, and so agencies trying this pricing model are just trying to get work done for nothing (and succeeding?).
The point then is, what are the consequences of a translation that is not “appropriate to the context”, as you say? If the agency flag up such issues, and the translator responds with “you didn’t pay so I didn’t even look at them”, does the agency respond with “Oh yes, a good point, well made. OK, we’ll say no more about it” or do they respond with “yes, but you’re still contractually obliged to turn in work which, as a whole, is up to snuff. We’ll be making a substantial reduction/never work with you again/sue your arse off for this, you worm”.
Indeed. I suspect that the contractual position is that the translator is liable. The translator agrees to take on the whole job; how the fee for that job is calculated is another matter. This is not an expert legal opinion, but I’d be surprised if it was very wide of the mark.
That was my first thought too. And I daresay that is what such agencies want us to think. But as well as being an ass, the law can sometimes be surprisingly logical. But it’s all mischievous suggestion on my part at the moment since I can find no cases whatsoever where an identifiable component of the delivered service was explicitly stipulated as not being paid for. Which is genuinely how I think we should view it, rather than simply a minor variation on the scale of charges for matches/repetitions by which the price for a job-lot is calculated. I think once a portion of that scale of charges hits zero, you really are looking at a different situation. But that’s the trouble, “I think….”, I don’t know. So I prefer to avoid.
I’m also starting to wonder whether there are not 2 different issues anyway:
a) the sort of document I described earlier, where the whole thing was 100% matches and was I was effectively being asked to translate the whole thing free of charge
b) scattered segments throughout an otherwise ‘fresh’ document, where it is more a question of the effect of not reviewing unpaid segments in terms of quality of the whole document, and responsibility/liability for same.
Either way, it’s dodgy ground, in my unqualified opinion 🙂
Of course, come to think of it, they could pretty much negate my point of view by paying a penny for all 100% matches combined, since that would suffice as consideration.
Or indeed, by stating their viewpoint on translators’ responsibility/liability for the stuff they are not paying for.
Although I suspect that in adopting either approach, the clarification would work to their disadvantage, in that it would only serve to highlight that translators are, in fact, expected to treat such segments in the same way they would if they were paid at full rate.
I charge my revision rate (which is 25% of my translation rate) for all 100% matches – but only if the client specifically asks me to use a CAT tool AND provides a TM that is not full of complete garbage. If I’m not asked to use a CAT tool, then whether or not the text has any matches in my own TMs based on my own previous work is not relevant to the price I charge the client.
And if they’re unwilling to pay my revision rate for anything I have to spend time on, I don’t accept the project. With my tendency to be over-thorough, I’d end up revising those segments anyway.