EN: (the) customer - article in a contract

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Parisicaine

Member
English - United States
I translate a lot of contracts from French to English. In French, unless a party is defined using their name, defined parties are always preceded by an article ("le", "la", "les") throughout the contract (e.g. "le Client déclare ceci" and "la Société s'engage à cela", but "M. Dupont s'oblige à cela". I have seen contracts in English that do the same, preceding such terms with "the" (i.e. "the Customer represents this" and "the Company will that", and others that omit the article (e.g. "Customer represents this" and "Company will that". Is there a standard usage, or does it depend on the type of contract or the country the contract is drafted in? Does a service contract or a sales agreement call for a different usage, for instance, from an employment contract? Can someone direct me to a good reference book or website for drafting contracts in English?
 
  • OLN

    Senior Member
    French - France, ♀
    Bonjour Parisicaine.

    J'ai trouvé en ligne le livre A Manual of Style for Contract-Drafting de Kenneth A. Adams (3e édition, 2013) . On y lit pp. 109 et 110 :
    If the defined term for a party name consists of a common noun, using the definite article—the Purchaser rather than Purchaser—results in prose that’s less stilted, and that’s worth more than the marginal economy afforded by eliminating every instance of the from the defined term. Some drafters prefer to omit the definite article to avoid problems with careless search-and-replace (...). But...
    Je ne saurais juger sa valeur. Il faudrait demander à un bon libraire ou à une corporation de rédacteurs de contrats quel est le manuel de référence en la matière.
     

    Parisicaine

    Member
    English - United States
    Merci beaucoup OLN, ça aide ! Si je comprends bien, selon M. Adams c'est surtout une question de préférence, la sienne étant d'inclure l'article. C'est probablement le cas. Je regarderai voir s'il y a d'autres guides en ligne.

    Si quelqu'un d'autre a d'autres suggestions, je suis preneuse.
     
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    Jektor

    Senior Member
    English (UK)
    I think "the" would always be included before such words as "Customer" or "Company".

    An example at random:
    “The Company” means XYZ Ltd. “The Customer” means any person with whom the Company contracts for the supply of goods and or services. “The Goods” means all the goods materials equipment and packaging supplied to the Customer whether or not manufactured by the Company. “The Services” means any service supplied to the Customer whether or not actioned wholly or in part by the Company or a third party given authority to act on the Company’s behalf....
    interfuture.co.uk - terms-and-conditions
    google.as - contract the+Company+means the+Customer+means
    .
     

    Parisicaine

    Member
    English - United States
    I think "the" would always be included before such words as "Customer" or "Company".
    No, it's not always included before such words. Regardless of random examples, there are other examples where "the" is not included. I used to feel as you do and always included the article. Then I got a harsh complaint from a customer who said they had never before seen a contract written that way. I had to "correct" my translation and remove the article preceding all the defined parties. Since then I have been hesitant, because I'm not sure if there is a standard rule on this.

    One can make the argument that if we would not say "the Mr. Smith", then we should not say "the Customer" when we are using Customer to replace Mr. Smith. If we're referring to an unnamed customer, then it would be the customer, but if we're referring to Mr. Smith, then it's "Customer". Just as we would say "Article 10", but "the article referred to above".

    Here are a few guides that say the opposite of what Kenneth A. Adams says above:

    Defining Individual Parties
    Make sure the term is defined in the beginning of the contract, in a clause added for introducing the parties. Do not use articles for this term, such as “an” or “the.” In other words, don't say “the seller,” just say “Seller.” This is done because you are simply replacing the party's name with the defined term.
    The parties defined
    To refer to a contract party in the agreement, either use the functional reference (e.g. Seller, Licencee, Service Provider, Lender) or the short name of the party (e.g. Weagree, Shell, Philips, Sony).
    Going by that rule, omitting the article has nothing to do with search-and-replace problems, as per Mr. Adams, but rather with the fact that the term is replacing the name of the party, and as such becomes a proper name in itself. I'm not saying I think it's the correct usage. I'm merely saying it's possible to argue for the rule.

    The American Bar Association agrees with Adams that using the article makes a contract marginally easier to read. But they appear to be saying they prefer this, but it's not a rule:
    the front of the contract - American Bar Association
    See Article 1.73:
    If a party name consists of a common noun, using the definite article—the Purchaser rather than Purchaser—results in prose that's marginally less stilted. In any event, be consistent throughout a contract in using or not using the definite article.
    This is why I'm asking the question. Is there a standard usage, or not? Valid arguments can be made for both. From our combined research, it looks to me like it's chiefly a matter of personal preference. But perhaps the question is about context rather than standard usage. Could it be that in some countries using the article is more prevalent, or that it depends on the type of contract?

    I've been continuing my research and came across a fascinating discussion on the blog of the very same Ken Adams:
    “The Vendor” or “Vendor” — A Practical Consideration

    Also, the same Kenneth A. Adams, on page 9 of his book Legal Usage in Drafting Corporate Agreements, Greenwood Publishing Group, 2001, states the following
    Defined Terms in the Introductory Clause
    If you elect to use a common noun as the defined term for a party name, you must decide whether to use a definite article. Once you have made your choice, be consistent; a surefire way to look like a sloppy drafter is to alternate randomly between, for example, Purchaser and the Purchaser. Doing without the definite article results in prose that is marginally more stilted than it would be with the definite article, but it also results in a marginally shorter document. I generally prefer using the definite article.
     
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    Maître Capello

    Mod et ratures
    French – Switzerland
    Visiblement il y a les deux écoles. Faites donc un choix et tenez-vous-y. Comme toujours en matière de typographie, en anglais comme en français, la règle d'or est de rester cohérent au sein d'un même ouvrage, voire une même collection, comme le suggère justement M. Adams :
    Once you have made your choice, be consistent
     

    Parisicaine

    Member
    English - United States
    Oui, je suis d'accord, il paraît que c'est selon la préférence du rédacteur, ou éventuellement du traducteur, étant donné qu'en français la question ne se pose pas. Le débat a été productif, pour moi en tout cas. Peut-être qu'il servira aussi à d'autres visiteurs à l'avenir.
     

    Jektor

    Senior Member
    English (UK)
    I still think "the customer" sounds more logical English, especially when the term is defined in the preamble of the contract, as in the example in #4. You say that one of your customers objected to "the customer". If the rest have made no comment, it suggests that the majority are at least untroubled by "the customer".

    You might feel that it would be easier to head off any potential problem by agreeing with your clients in advance which term you will use before you do a contract translation - and/or perhaps include a notice in your promotional material that you will use "the" unless otherwise agreed in advance. This could explain the arguments for and against as discussed here and in your interesting link above (which also makes some interesting points about possible word processing complications):
    adamsdrafting.com - the-vendor or vendor
    .
     
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