Last week, I waded in the perennial debate of UK vs. US English by sifting through some of the finer grammatical and spelling differences which can crop up in legal translations.
This week, I am back with more of the same. Because, like every good language pedant (and I come from a long line of them), once I’m onto these things, I’m like a dog with a bone. I just can’t let it go.
This language-obsessive-missive is all about the Oxford comma, speech marks, and my personal hobbyhorse: “shall”.
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1. The Oxford comma
To say that the Oxford comma (also known as the serial comma) shares its name with a British city and university, it is encountered far less often in British English than in American English.
First, the basics: the purpose of an Oxford comma is to offset the final item in a list containing three or more items.
For example:
I went to the shop and bought apples, oranges[,] and pears.
American English can barely contain its enthuasiasm for the Oxford comma, with a number of style guides recommending or mandating it. British English, on the other hand, will only add the Oxford comma if there would otherwise be confusion, or if the sentence would take on a different meaning than the one intended without it. Consider the following cautionary tale:
With an Oxford comma:
I would like to thank my parents, Ayn Rand, and God.
Without an Oxford comma:
I would like to thank my parents, Ayn Rand and God.
Never underestimate the power of a comma. Misuse may result in altered parentage and involuntary transformation into a part-deity.
Personally, I like the British approach. Putting an Oxford comma in sentences that don’t need one to maintain the intended meaning disturbs the flow of the text. It is the grammatical equivalent of those useless little porcelain knick-knacks your grandma used to fill up her shelves with.
Clear out the crap. Less is more.
2. Speech marks
This is one where the Americans and the British take opposite approaches. It’s also something I had no idea about until I wrote this article and discovered that I’ve been unwittingly taking the American approach for years – and I actually prefer it.
The difference lies in the way the two variants place double and single speech marks. While in US English, double speech marks are used to frame the main quote with single speech marks framing any quote within the main quote, British English flips it the other way.
US English:
The President says, “This is how the American people do it.”
The President says, “This is how the American people, as they say, ‘do it.'”
British English:
The Prime Minister says, ‘This is how the British people do it.’
The Prime Minister says, ‘This is how the British people, as they say, “do it”.’
(Phew. Never mind the speech marks – the placement of the commas and full stops in those sentences made me want to lie down in a darkened room. I’m still not quite sure if I’ve got it right.)
3. Shall we write “shall”?
In truth, this issue does not relate to differences in spelling and grammar between US and UK English. It is a general legal drafting/translation issue and, as such, is slightly off-topic. But I never pass up an opportunity to shoehorn in a rant about “shall” and it’s a question which is highly relevant for legal English, both in the UK and the US. So here we go…
There is no other word in legal translation which incenses me in quite the way that “shall” does. In fact, I have been waging a one-woman war against it for the past 8 years.
My rejection of this term even has a faintly Braveheart quality to it, as if I am standing up for some elemental life-or-death principle. Of course, most of the time, I take a quintessentially British approach (read: quietly stubborn and passive-aggressive) and just submit a translation free of shalls (if I’m not bound by any specific terminology rules). But in my mind, the resistance is passionate and sounds something like…
“YOU MAY TAKE MY LIFE, BUT YOU WILL NEVER MAKE ME USE ‘SHALL’ WHEN WE ARE EXPRESSING AN OBLIGATION, MANDATORY UNDERTAKING OR REQUIREMENT!!!!! RAAAAAAA!!!!”
(OK, that is a bit of an exaggeration – but I do feel very strongly about this, and fists have been shaken at my computer screen on multiple occasions. It must be the Celt in me…)
The thing is – this ire is very much restricted to the use of “shall” in a legal context. I don’t have any problem at all with it in a colloquial sense, when I think it sounds quite nice and genteel (“Shall we take a stroll along the river?”).
When we enter the legal sphere, however, clarity is paramount. There is a time and a place for gentle suggestion, and this is not it. As far as legal documentation is concerned, it’s time to get out those linguistic sledgehammers and let the world know exactly what you mean.
If you want to express an obligation, mandatory undertaking or requirement where the obligee has no choice or flexibility in the matter, then “shall” is a poor choice of words. It is polluted by its concomitant use to indicate mere intention to do something and could thus let an element of uncertainty into your legal document/translation that you didn’t intend or wasn’t present in the source. “Shall” is thus an open invitation to litigation and both lawyers and translators would do well to avoid it.
Even though American colloquial English is less prone to “shall” than its British brother, “shall” still leaks into legal documentation over there, as it does in Britain – not to mention EU legislation, where “shall” crops up all over the shop. Ken Adams, a respected authority on contract drafting, is also still out there, resolutely defending the Kingdom of Shall.
None of this impresses me. I remain defiant in my rejection of this annoying little word.
More “anti-shall” ammunition:
“Shall” and “must” – Federal Plain Language Guidelines
No obligation imposed by “shall” in commercial referral agreement – Allen & Overy (a great illustration of how “shall” can get you into a huge pickle)
Must, shall and will in business contracts
As far as German-to-English translation is concerned, if you are dealing with obligation-imposing formulations like “Partei X ist verpflichtet, ABC zu machen“, “er verpflichtet sich, XYZ zu machen/zu unterlassen” or “Partei A hat XYZ zu tun/zu unterlassen“, then these are the words you should be reaching for:
- “Is obliged”, “has an obligation”. These are clunky and wordy, but don’t leave any room for uncertainty about the existence of an obligation.
- “Must”. This is my favourite option, and is also the one gaining popularity with lawyers and legislators across the English-speaking world from the US to Australia and the UK. Some lawyers might shrink away from “must”‘s harsh, bossy tone – but as a translator of the German language, I am not perturbed by such qualms. German is a harsh, bossy language and German and Austrian laws are harsh, bossy systems full of obligations and prohibitions, so “must” is a natural fit for the translation.
- “Will”. I’m also fond of this, but it does suffer from the same sort of future-intention issues that “shall” does, so you do need to be careful with it.
I do believe, after my cleansing “shall”-rant, that I am ready to close this mini-series on UK vs. US English. I hoped you enjoyed it and learned something new!
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Related articles:
UK vs. US English Part I – the nitty-gritty legal translation edition
Americanisms: from the sublime to the ridiculous. A British perpective.
A little anthology of iffy translations
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