We are drafting a master services agreement and associated service agreements in both Japanese and English. The MSA will be translated into Japanese from the english draft by an English speaking Japanese lawyer. We are binding the jurisdiction to Hawaii. My question is do the service agreements need to also be translated to avoid a Non est factum style situation? Or under State of Hawaii law is it possible for a non-english speaker to sign an english only version and for it to still hold?

Generally what are the Non est factum litmus tests in the State of Hawaii when one is specifically addressing contracts written in non-native languages?

1 Answer 1


Remember a contract involves the "meeting of the minds"; the paperwork is only the documentation of that "meeting". While courts will generally confine themselves to the written document they are actually considering the legal relationship as a whole.

A non-English speaker (or even English as a second language) could certainly make the argument that the documentation does not reflect their understanding of the agreement they thought they were entering into more readily than a native speaker could. Weather this would actually amount to "non est factum" would depend on the facts but in general this defence requires the document to be radically different from what was agreed, not just different in detail.

Still, who wants the fight? Particularly as you are paying to have the master agreement translated the costs of translating the service agreements should only be incremental.

I was unable to find any specifically Hawaiian case law but as "non est factum" is common law the principles should be generic.

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