Originally written by Ina Brachmann on December 1, 2008 6:01 PM What is your point Derek? Showing me, that you don't have this experience. What can we all learn from this?

All it shows, Ina, is that at least one translator can work freelance for over 30 years without ever having needed a written contract to get paid, and by extention, that following normal commercial business principles and being careful is usually sufficient. Unfortunately, many freelance translators would not recognize normal commercial business principles even if they were hit over the head with them.

Every client/customer relationship is different.

In some respects, yes. Nevertheless, normal commercial business principles are pretty much the same everywhere, caveat emptor being universal, taking on work for strangers without a payment guarantee deposited at a bank being intrinsically high risk, a written contract notwithstanding.

Sometimes there is no need for an agreement, but mostly there is.

So we take diametrically opposite stands. My point was that "Sometimes there is need for an agreement, but mostly there is not".

I am neither an accountant nor a lawyer nor do I want to go to court. If I have to, I will.

And my point was: "I am neither an accountant nor a lawyer nor do I want to go to court. If I have to, I will find some way not to."

Besides, every field of translation attracts different clients and therefore needs different methods.

When you accept an order as a freelance you are effectively giving the customer an unsecured loan for the amount of the order. If you accept a job from somebody who you cannot rely on to pay you then a written contract is not going to save you from some very heavy expense, even if you win, and even if only in time lost and aggravation. The essential thing is to work only for customers who you can reasonably trust, who would have no motive to try to get a translation made without having to pay for it - (there are far easier ways to cheat people out of very much higher sums.)

There are just as many (maybe even a lot more) untrustworthy translators as there are untrustworthy translation customers. Trust works both ways. I have always shown my customers that I trust them by guaranteeing them that if they are not completely satisfied with my work then I will not charge them for it (check out my profile here, for example). Nobody has ever taken me up on that deal, not once in all those years.

That is why I propose that by taking work only from customers who you can trust and adhering to normal commercial business principles and always delivering satisfactory work is a better guarantee of getting paid than having a written contract upon which to litigate. A 100% guarantee it is certainly not but then having a written contract is even less secure - and a great deal more trouble to arrange and enforce.

I think everybody is free to decide, whether one wants a contract or not. I just try to make an effort (by being honest) to get people discuss this topic.

OK, Ina, so I am discussing it!

What ideas or suggestions do you have in terms of checking clients, who are spread around globe?

I covered that already - adhere to normal commercial business principles and deal only with customers who you can trust. It is nothing to do with their being spread around the globe. I have trusted people all around the globe in my time and not been disappointed but there are some people living on my street for whom I keep my virtual hand on my virtual wallet every time they come near me.

The corollary is, of course, have a fine nose for distinguishing those you can trust from those you cannot.

Derek
 

Originally written by Jacek Krankowski on December 1, 2008 8:36 PM The same here, but I suspect, Derek, that this may be limited to the world of dinosaurs which is on the verge of extinction...

But that is a different philosophy altogether, Jacek! Every January 1st I wake up with the thought that we have made it once again all that long way around our local star and that despite all those asteroids crossing our orbit perilously close, some well predicted, others less so, the big hit has yet to take place and there is nothing that I can do about it anyway - here we go around again!

That aside, normal commercial business principles have retained their validity for many thousands of years and will continue to do so at least until H. sapiens sapiens goes the way of the Allosaurus and the Stegosaurus.

More to the point, the web page from which I obtained that picture is titled "What is a Dinosaurs ?" which inevitably raises the question "What is English grammars ?" and "Will H. sapiens sapiens eventually be able to communicate only by grunts before his extinction or will the very last one still be able to get out a loud "Merde!" before the shock wave hits?" My money is all going on the bet that communication will be by a series of grunts long before the rats, worms and cockroaches take over once again and we are just another evolutionary aberration whose slate has again been wiped clean.

Derek
PS: I do hope that you have not tricked me into drifting this thread, Jacek?

At which point, we will be able to say that RE: The future has arrived anyway, so it will start all over again...

Except that there might be even less trust around than now. An unemployed ex-colleague of mine (not a translator) just told me the other day the truth about the Polish business world (from which I am comofortably insulated, living in an enclave) and that sent shivers down my spine... There is no ethics anywhere in that demoralized jungle where employees do not get paid salaries, courts are helpless, etc.

Jacek

Three days ago, I received what looked like a wonderful business proposition. Still, there was a little worry sound somewhere in the back of my mind, but while rereading the letter, which was written with impeccable style and grammar, I couldn't put my finger on why the worry sound was getting louder and louder. I checked the website, very professional. I read every sub header, still okay. Then I got to the 'Who we are' sub page. All I see is stegosauruscom with no email address, no telephone number, no name or names, and no physical address, just the same stegosauruscom, repeated.

I am not, of course, going to do business with an extinct stegosaurus. However, I still can't figure out what alerted my worry sound in the initial approach. Sometimes it helps me to have a physical letter so I print it out and immediately see the problem: Dear Mr. or Mrs. Greetings....

Nanna

You mean Derek managed to play this trick on you overnight???

Smoke and mirrors

Gotta run...

N.

There seems to be some terminological confusion here.  A "contract," in Anglo-American law, is formed whenever there is an offer and an acceptance of an enforceable promise.  There need not be any formal document called a "contract," or even any document at all.  A contract may be oral or implied, and a purchase order, if accepted, constitutes a contract.  So it is inaccurate to say that a purchase order is not a contract - if it has been accepted, it is a contract.

The law in Germany may of course be different.  But what law governs an internet-based translation contract is a tricky question, and different countries may consider one or more of the following factors as relevant, or even decisive in and of themselves:  1) the location of the buyer, 2) the location of the seller, 3) the location where the work is to be performed, 4) the location where it is to be used, 5) the location where its effects will be experienced, 6) the location of the server that hosts the internet site.  So all should note that theoretically their contracts may be governed, under approach 6, by the law of the jurisdiction that TC maintains its server, wherever that may be!

Originally written by David Kallans on December 2, 2008 4:03 PM There seems to be some terminological confusion here.  A "contract," in Anglo-American law, is formed whenever there is an offer and an acceptance of an enforceable promise.  There need not be any formal document called a "contract," or even any document at all.

No, there is no confusion here unless you are intent on introducing it, David! Yes, we know that a contract is formed when a translator accepts a job for a consideration. I never did claim that accepting a purchase order was not a contract, in fact I argued at length that a purchase order and the subsequent acceptance was the preferred form and I expressly used the term "written contract" to make it clear that was the form that I was advising against.

By "written contract", if I have to spell it out, I mean a document couched in court-tested legal language in which the terms of the contract are detailed in writing and signed by the parties as evidence of their intentions. That has to be written or adapted by a lawyer for each case or it is just a template which might or might not meet the translator's real need and might or might not stand up if contested. In any event it will cost a packet.

The notion of preparing a "written contract" for a simple translation is in my view ridiculous. All there is to establish is:

1. This is what is to be translated and into which language.

2. When it has to be delivered.

3. How much is going to be paid for it and when.

I feel sure that covers the bulk of all translations. Naturally, there can be any number of details to settle and it is convenient to fix them in writing if there is any real risk of a misunderstanding. This can be in the form of a simple e-mail list confirming what has been already agreed or it can go as far as accepting a standard "company documentation specification" covering the technical aspects and in the form of printed general and special commercial terms and conditions (often in the small print on the back of the purchase order) but that surely has to be the exception and it is still not going to help you if you are working for a bad (or fraudulent) payer.

But what we were discussing (or what I thought we were discussing) was the insistence by the translator on having a written form of contract that was to be signed by the translation customer with the intention of imposing more stringent payment conditions than usual on that customer. That could only be done by insisting on some kind of bank guarantee of payment, like an irrevocable letter of credit or of payment in advance against some kind of security. That might be reasonable for a million dollar deal but it is hopelessly out of proportion in cost and time for the average translation job. For a start you have to establish that the person signing the contract is who he says he/she is and that they are authorized to sign contracts binding whoever is eventually due to pay your invoice. That alone can be difficult.

I do translation work for local commercial customers on the basis of a handshake (real or implied), like diamond dealers do, for example. Like most translators, I do translation work for overseas customers on the basis of a virtual handshake (an exchange of e-mails, one from the customer saying "translate this by Friday" and another from me saying "OK"). Some customers (municipalities, large corporations) often have a procurement system that requires them to use a special form sheet but that mostly comes either as a fax or as a PDF file and they are the exception.

The rule just has to be: "If you ever feel the need for a written contract when dealing with a certain translation customer then that is a pretty good indication that you should turn down the job."

However, if you are feeling lucky that day and take on the job anyway then you should immediately understand that you have just given a total stranger an unsecured loan with all that entails. One way to handle that is to mentally write it off as a gift so that when he/she does pay it comes as a pleasant surprise!

Derek

Originally written by Jonathan Downie on December 12, 2008 9:44 AM If an invoice has a payment date on it and the client does not protest to that date does that mean that they have accepted that legally they should pay the balance on or before that date?

In my limited experience, direct customers have their own general procurement conditions and they are very often printed in a very small medium-grey font on the back of their purchase order and those conditions very often include a provision for invoices to be paid within, for example, 90 days of receipt of the invoice and it would be you who has accepted their conditions by explicitely acknowledging receipt of their order, or implicitely by carrying out the work. 

Trying to impose your payment conditions as late as with the invoice strikes me as being rather futile. I feel sure that they can safely ignore them. The time to define your payment conditions is with your offer, after that, in my opinion, it is too late.

I am having the opposite problem at the moment. Direct customers are trying to use up their budgets before the end of the year and are pressing me to send my invoices now, long before I have finished the work, in one case before I have even started.

It is all relative. As long as you eventually get paid, it is hardly worth making a "legal" fuss about a week or two or even a month or two one way or the other.

Derek