Should Inspectors Provide Contracts in Spanish (or Other Languages) for Potential Clients Who Do Not Speak English

 
by Mark Cohen, J.D., LL.M., InterNACHI General Counsel and Nick Gromicko, InterNACHI Founder
 

Inspectors sometimes ask whether to have their contracts translated into other languages for potential clients who don’t speak English.  We appreciate the desire of InterNACHI members to be sure potential clients understand the terms contained in legal documents, but from a legal standpoint, we feel providing contracts in other languages is unwise.

One fundamental principle of contract law is that one who signs a contract is presumed to have read and understood it. “Indeed, it is well-settled that an otherwise mentally competent person who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and she must be held to have known and fully comprehended the contract's legal effect.” Delfingen US-Tex., L.P. v. Valenzuela, 407 S.W.3d 791, 801 (Tex. App. 2013).

While this may seem harsh, any other rule would wreak havoc on the legal system.  Without this rule, courts would be bombarded with lawsuits seeking to invalidate contractual obligations based on claims that one party did not read or understand the contract.

The courts have applied this rule even when the person seeking to avoid the contract does not speak English. Chen v. New Trend Apparel, Inc., 8 F.Supp.3d 406 (S.D.N.Y. 2014); Morales v. Sun Constructors, Inc., 541 F.3d 218, 222 (3d Cir. 2008) (“In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.”); Tamez v S.W. Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. 2004); Vera v. N. Star Dodge Sales, Inc., 989 S.W.2d 13, 17–18 (Tex. App. 1998); In re Ledet, No. 04-04-00411-CV, 2004 WL 2945699, at *5 (Tex. App. 2004) (“Whether a party is illiterate or incapable of understanding English is not a defense to a contract.”); Fried for Use of Berger Supply Co. v. Feola, 129 F.Supp. 699 (W.D.Pa.1954) (Difficulty understanding English does not render contract unenforceable).

If you choose to translate your contracts into another language, you assume a duty to make certain the translation is accurate.  Hialeah Automotive, LLC v. Basulto, 922 So.3d 586 (Fla. App. 2009).  So, in addition to the risk of being sued by a client claiming you did not conduct a proper inspection, you also assume the risk of being accused of not providing an accurate translation and losing the benefit of all the provisions in the contract intended to protect you.

Another possible problem if you attempt to provide a foreign language version of a contract is that the meaning in the foreign language document may differ from the meaning in your English document.  The question then becomes which document controls.  You could end up in a “battle of experts” with different people opining on the meaning of the foreign language document.  See, for example, Ramos v. Westlake Services LLC, 195 Cal.Rprt. 3d 34 (Calif. App. 2015). 

For the reasons above, we believe inspectors should not provide translated versions of their contracts to potential clients. We believe no action is the best action.  However, if any inspector has strong feelings on this issue, rather than translate a contract into another language, we recommend that the inspector include something like this in the contract:

IF YOU DO NOT SPEAK OR UNDERSTAND ENGLISH, YOU SHOULD HAVE A QUALIFIED EXPERT TRANSLATE THIS AGREEMENT FOR YOU BEFORE YOU SIGN IT. IT IS YOUR DUTY TO MAKE CERTAIN THE TRANSLATION IS ACCURATE. IF THERE IS A CONFLICT BETWEEN THIS AGREEMENT AND THE TRANSLATION, THIS AGREEMENT WILL GOVERN.

In Spanish, this would be:

SI NO HABLA O ENTIENDE INGLÉS, DEBE TENER UN EXPERTO CALIFICADO, TRADUCIR ESTE ACUERDO ANTES DE FIRMARLO. ES SU DEBER HACER CIERTO LA TRADUCCIÓN ES EXACTA. SI HAY UN CONFLICTO ENTRE ESTE ACUERDO Y LA TRADUCCIÓN, ESTE ACUERDO REGIRÁ.

 

If you have any questions, please contact the office of InterNACHI’s General Counsel by email to legal@internachi.org or by phone at (303) 302-1841.

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