Legal translation as comparative law: the case of the Brazilian contract law

Legal translation is a tool of comparative law so long as the translator conforms to the methodological rigours of the comparatist scholar. Comparative law serves the purpose of justice when it allows lawyers in one jurisdiction to examine critically domestic legal solutions in light of diverse solutions from other jurisdictions. If these solutions are expressed in different languages, the task of translation becomes essential to these comparative undertakings. A case in point is the expert witness in judicial proceedings involving foreign law applicable under conflict of law rules, whose mission is to enlighten the local judge on how to apply the law as the foreign judge would have done. This article presents the task of legal translation as a tool of comparative law in the quest for justice by reporting a sample of the translation of the contract law of the Brazilian Civil Code from Portuguese into English. In order to express the source legal concepts transparently, the comparatist-translator needs to find functional equivalents in the target language inviting the foreign lawyer to accommodate the source concept sensibly in their own legal system. This means that in some cases this translation departs from reputable international instruments in the English language that fall short of crossing the divide between the civil and common legal traditions. By disclosing the logic behind the choice of words or legal equivalents, this article locates legal translation within the realm of the discipline of comparative contract law in the search for commonalities between diverse jurisdictions.