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Based on a question on another stackexchange site: Contractor A wants to work for company B. A is English speaking, B is in Bulgaria. B offers a contract in Bulgarian, with an English translation, and wants the Bulgarian version to prevail if there are discrepancies. Very understandable from their side, very unfortunate for A.

Is it possible at all to have a contract written in two languages, with the proviso that when in conflict, the parties will first try come to some agreement, or let a court decide on what should happen, based on both contract versions?

For example, the Bulgarian version might say that overtime payment is 20%, and through some translation mistake the English version says 25%.

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  • international law had this in several cases. Like the contracts about how to deal with Germany after WW2 were such.
    – Trish
    Oct 8 at 20:15
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Yes

Although it’s highly unusual. Most bi-lingual contracts have one language being the definitive version. Doing it this way greatly reduces the likelihood of and cost of resolving a dispute since it eliminates arguments over which conflicting version is right.

However, parties can contract any way they like and if A has sufficient bargaining powers, they might convince B to have both versions definitive or even the English version being definitive.

If A lacks that power, they can pay a legal translator to check the English version matches the Bulgarian.

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Is it possible at all to have a contract written in two languages, with the proviso that when in conflict, the parties will first try come to some agreement, or let a court decide on what should happen, based on both contract versions?

Yes. The requirement to "first try come to some agreement" may consist of alternative dispute resolution methods such as mediation. The second approach might require translators as expert witnesses because a judge is not necessarily proficient enough in both languages.

For example, the Bulgarian version might say that overtime payment is 20%, and through some translation mistake the English version says 25%.

That is not a translation mistake. Digits are the same in both languages, and they cannot lead to the semantic discrepancies that can arise between two languages. The most reasonable enforcement of the provision "the Bulgarian version prevails" is to limit it to said semantic discrepancies rather than to extend it to all imaginable mistakes and misrepresentations company B might make. Therefore, company B has to honour the rate of 25%.

Furthermore, contracts usually state the important numbers both in digits spelled out to preempt confusions. Example: "Overtime payment is 20% (twenty percent)". Company B's failure to take that precaution hints at its own sloppiness or an attempt to short-change contractor A by hoping that he will not notice a mistake that is detrimental to him.

Contractor A's position is further reinforced by the fact that the Bulgarian version uses Cyrillic rather than Roman alphabet. Company B evidently knew that contractor A is acquainted with Roman alphabet only. From A's perspective, the Bulgarian version is a string of unintelligible symbols where a discrepancy of digits in between is likelier to go unnoticed.

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As an example of what can go wrong, look at UN Security Council Resolution 242, which passed in 1967. I am deliberately not going to go down the rabbit hole just for the sake of giving an example of what your question was asking. I am going to request that people please not use this answer to argue about the larger conflict this is a facet of or explain to everyone which side is obviously wrong.

The English version calls for the withdrawal of forces “from territories occupied in the recent conflict.” The French version calls for something different: withdrawal “des territoires occupés”, or literally, “from the territories occupied.” That’s what started more than fifty years of arguments.

Some lawyers have argued that the English version should take priority and means withdrawal from only some of the territories was acceptable. Others give arguments that the French version is equally valid or a correct translation that tells us how to interpret the ambiguity in English. The American Secretary of State, Dean Rusk, who helped negotiate the text, writes in his memoirs that it was intentionally left vague as a compromise:

There was much bickering over whether that resolution should say from "the" territories or from "all" territories. In the French version, which is equally authentic, it says withdrawal de territory, with de meaning "the." We wanted that to be left a little vague and subject to future negotiation [....]

A diplomatic resolution can “be left a little vague” because there is no way to enforce it, neither side believes the dispute should be resolved by lawyers arguing over what it means when there is or isn’t a definite article in the literal text of a United Nations resolution anyway, and all that’s ever really been at stake in this particular argument is point-scoring in speeches. (Yet, at the same time, it’s related to a very important topic that people are extremely motivated to argue about.)

But be careful if your legal contract ends up being negotiated like a diplomatic compromise. If you are interested in looking up the details of this dispute, here is the Wikipedia page. And here is the equally-authentic French version.

PS

There was a good comment pointing out an important difference between your situation and this one: you’re contemplating that both sides can at least agree on which legal process will resolve any dispute and render a decision. This is very true.

I think, though, that this still shows how fundamentally impossible it is to decide what a text really means when there are two equally-authoritative versions of it that say different things. And you do not have even a hope of catching every possible ambiguity and discrepancy between English and Bulgarian, even if removing all of them were possible. The whole reason you don’t want to go by the Bulgarian contract is that you don’t trust your side’s understanding of what it says. If you believed you knew Bulgarian well enough to make this idea work, you wouldn’t need to.

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    The answer does not address the OP's question. The fact that something in an approach can go wrong does not imply that the approach itself is impermissible or impossible. The OP asks whether the approach he outlines is possible. And rather than leaving "intentionally vague" the matter of which version is the official one, the OP's description is that the parties specifically delegate to the court the interpretation of both versions combined. Oct 8 at 23:32
  • @IñakiViggers I see where you.re coming from. To me, the fact that an extremely subtle discrepancy in a translation can lead to an interminable, fundamentally irresoluble debate for more than fifty years is highly relevant to whether the approach is really “possible.”
    – Davislor
    Oct 8 at 23:37
  • "an extremely subtle discrepancy in a translation can lead to an interminable, fundamentally irresoluble debate for more than fifty years". The OP's scenario is very unlikely to lead to an "interminable" controversy, in part because (1) the stakes between company and contractor are very different from those between world powers, and (2) the matter as outlined by the OP specifies which version(s) is dispositive in the event of a dispute. Oct 8 at 23:49
  • @IñakiViggers I mean, yes, in this case he’s at least contemplating that both sides agree on which legal system gets to render a verdict. I think this shows that, even with the best of intentions, it’s just not possible to decide what a document really means when two equally-valid versions of it say different things. And the entire reason they don’t want to pick one version is that none of them speaks both languages well enough to even have a hope of catching all the problems like that. If they thought they knew both English and Bulgarian well enough to do that, they wouldn’t need to!
    – Davislor
    Oct 8 at 23:56
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You can say whatever you want in the contracts, the more important question is what is enforceable (and where). In the US, the courts won't directly deal with contracts written in Bulgarian, so if enforcement is going to be pursued in the US courts, you can't expect the courts to "use both versions" – but that's not an impossibility in Canada if the languages are French and English. Similarly, Chinese courts operate in Chinese. It may be necessary for each side to provide their own certified translations of the linguistically-foreign contract, since the "correct" English translation of a Bulgarian contract can easily be in dispute (though not "20" vs. "25").

The second principle that must be born in mind is that most jurisdictions require there to be a meeting of the minds, in order for there to even exist a contract. 4-corners doctrine notwithstanding, a court is unlikely to hold that a person who knows no Bulgarian actually agrees to a particular set of clauses written in Bulgarian, even when their signature can be found on the last page. The courts may or may not depends strictly on "the text": it depends on which court hears the case.

What is probably more important than deciding which version of definitive is deciding which legal system is applied.

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