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http://dx.doi.org/10.32601/ejal.651339
Eurasian Journal of Applied Linguistics, 5(3), 461–471
EJAL
Eurasian Journal of
Applied Linguistics
Using Contrastive Terminology Analysis in Teaching
a Foreign Language
Chunxiang Wu a
1
, Jennifer Baccanello a
2
a Department of Cultural Communication, Shanghai International Studies University, China
Received 02 February 2019
Received in revised form 15 May 2019
Accepted 16 May 2019
APA Citation:
Wu, C. & Baccanello, J. (2019). Using contrastive terminology analysis in teaching a foreign language. Eurasian
Journal of Applied Linguistics, 5(3), 461-471. Doi: 10.32601/ejal.651339
Abstract
This study focuses on teaching Chinese for Special Purposes (CSP) and explores how terminology used in
Chinese commercial contracts can be taught using a contrastive terminology analysis. Firstly, we outline
the contextual differences that exist between commercial contracts drafted in Chinese and those drafted
in English. Secondly, we describe the method of contrastive semantic analysis and show how it can be
paired with corpus linguistics in order to help L2 Chinese learners acquire vocabulary used in Business
Chinese, focusing specifically on Chinese commercial contracts. Thirdly, we shall explore the semantic
equivalence between lexical items of different languages. Lastly, we present a semantic analysis of
terminology found in Chinese and English commercial contracts. We hope that the theoretical framework
presented in this paper will be of use to teachers of Chinese for Special Purposes.
© 2019 EJAL & the Authors. Published by Eurasian Journal of Applied Linguistics (EJAL). This is an open-access
article distributed under the terms and conditions of the Creative Commons Attribution license (CC BY-NC-ND)
(http://creativecommons.org/licenses/by-nc-nd/4.0/).
Keywords: contract; contract law; semantic equivalence; contrastive linguistics; Chinese for Special
Purposes (CSP)
1. Introduction
Following China’s evolution into a market economy and given that China and the
west are closely intertwined in terms of international business, it is natural for us to
have the need to reflect on differences and similarities in our rules and customs, our
law, and our different languages. The commercial contract, a crucial document for
international deals and transactions, undoubtedly plays a key role in intercultural
communication in business. For those involved in international business, we consider
it useful to see communication in one language not merely as a self-producing artefact
that exists within a closed system, but rather to consider communication as a process
that can be influenced by a range of factors including intercultural contacts as well as
societal and cultural changes. We can take the common law system as an example of
this very occurrence, where judgments in the English legal system and
interpretations of law can have important consequences for other common law
1
shdwchx@126.com
2
Corresponding author.
E-mail address: jbaccanello@gmail.com
462 Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471
jurisdictions such as Australia. Another example of how different societies influence
each other is in the case of developing legal systems. For example, in the early 20 th
century, China adopted a civil law system partly based on European legal codes. Since
this major milestone in Chinese legal history, we have seen a step away from
traditional Chinese notions of how laws should be implemented in society. China’s
legal system has continued to evolve and modernize since its adoption of the German
legal code in the early 20th century. Examination of key concepts in commercial
contracts and definitions of these concepts is an important goal for international
business communication. This paper seeks to undertake a contrastive analysis of
terms in contracts in different legal systems, namely, the Chinese legal system and
the English legal system.
The analysis of terminology used in commercial contracts is particularly useful for
L2 learners of languages for special purposes as these learners are participants of
rapidly evolving international business relations. Chinese and English are chosen for
the analysis as they are widely used in international business. The legal system of the
People’s Republic of China is therefore the background of our study on Chinese
language, while the English legal system is the background of our study on English
language given that the Anglo-Saxon legal system has a lengthy legal history and has
become a model for many other common law systems.
This research aims to shed light on the different parts of the semantic analysis of
commercial contract terminology that must be considered. The research has three
main objectives: to investigate the similarities and differences in the legal context
dealing with terminology in commercial contracts in Chinese and English, to highlight
the problem of equivalence in dealing with legal terminology, and to encourage and
promote corpus linguistics as a useful tool for L2 learners.
In this research, we deal with terms by giving several examples of common terms
found in contracts and their usage. By describing the usage of these terms in different
legal systems and analysing their most important features, we pay special attention
to semantics and corpus linguistics. This kind of analysis is important for the learning
process and application of terminology found in commercial contracts. The method of
this study is a combination of descriptive and contrastive methods so that we can
describe and compare semantic features of Chinese and English terminology in
commercial contracts.
2. Contrastive semantic analysis and corpus linguistics
2.1. Contrastive semantic analysis
Contrastive semantic analysis is a useful way of understanding the evolution of
legal terminology. It can be described as the process of looking at two or more
languages and analysing the languages at a range of different levels. For example,
one could look at the levels of the phrase, clause, sentence and paragraph, or rather,
the writing as a whole.
Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471 463
Contrastive research has been carried out extensively by terminologists. For
example, Cao (2016) has written extensively on the Chinese language used in the
context of law, making comparisons with the English language. Cao (2016) mentions a
general term she refers to as ‘Chinese linguistic uncertainty’ when describing
vagueness, generality and ambiguity in the Chinese language, and in doing so,
provides examples of how Chinese language can have structural or syntactical
ambiguity. Mattila’s (2006) work Comparative Legal Linguistics is an in-depth
investigation on topics such as characteristics of legal language, legal terminology,
and legal linguistics. However, non-European languages such as Chinese were not
considered. Therefore, this current study aims to add to the current comparative
literature in the field of legal linguistics by exploring the Chinese language.
Importantly for L2 learners, contrastive semantics can help learners understand the
differences between languages and discover particular characteristics that may be
unique to a given language. These can serve as useful tips for foreign language
teaching, as teaching new lexical items to students ought to go beyond merely
showing a rough equivalent in the student’s native language, but should also include
the teaching of features that are idiosyncratic, as well as those features that are
universal (Makino, 1974). In the mid-to-late 20th century, contrastive analysis was
used following the emergence of linguistics theories such as Ferdinand de Saussure’s
structural linguistic theory. Later, J. B. Watson, who worked on the behaviorist
theories of second language acquisition, was concerned with interference and its role
in linguistics. Accordingly, contrastive analysis was also used to provide insight on
interference in language learning. As emerging fields such as computer assisted
linguistics evolve, contrastive analysis may begin to resume its once important role.
Scholars such as Breeze (2017), McEnery and Xiao (2011), Bennet (2010), Sinclair
(2004), Aston (2001), and Johns and King (1991) have discussed how data-driven
learning exploiting the use of corpora can be used for foreign language teaching
purposes, and studies such as those carried out by Mattila (2006), Sandrini (1996) and
Kocbek (2006) could be broadened so as to make further cross-linguistic comparisons.
2.2. The role of corpus linguistics in contrastive semantic analysis
A range of studies in different professional fields have commented on the use and
value that corpora has in structured education (see Hafner & Candlin, 2007). While
corpora are useful for students learning about a language, Breeze (2017, p. 2)
comments that corpora are “even more important in the area of languages for specific
purposes”. Corpus linguistics may be considered as a methodology, in which the
researcher can closely examine the frequency at which linguistic elements occur. In
contrastive semantic analysis, corpora could therefore be used to compare information
in frequency lists across two or more languages. For example, at the semantic level,
we may be interested in looking at how near synonyms differ from each other. Whilst
this study does not include the use of a specialized corpora for teaching Business
Chinese to L2 Chinese learners, we can see from the semantic analysis below that by
building specialised corpora for the teaching of languages for special purposes, we
464 Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471
would be able to closely analyse the use of terminology in particular contexts and
make cross-linguistic comparisons that could reveal important differences in the
implied meaning and usage of terminology.
3. Comparing contextual differences of commercial contracts
For this study, it is important to note that one cannot perform a comprehensive
semantic analysis without having an understanding of the contextual differences of
the terminology. Accordingly, this section first explores the similarities and
differences that exist between the background in which commercial contracts drafted
in Chinese in China and commercial contracts drafted in English in the UK. This
therefore involves a discussion on the legal system in both countries. One of the main
pieces of legislation governing Chinese commercial contracts is the Chinese Contract
Law (CCL), while commercial contracts in the UK are governed by a body of law,
including both case law and the Sale and Supply of Goods Act.
The most widely held notion of contractual formation is that there is an offer made
by one party to another, and that there is acceptance of that offer. In conforming to
this standard found in both common and civil law systems, the CCL also adheres to
this notion, as stipulated in Article of the CCL. While the word hetong is often used in
China to describe a contract, for many centuries prior, the term qiyue (agreement)
was in fact used. Qiyue is typically referred to a legal relationship between parties
and involving a legal obligation.
3
While rules governing qiyue differed from dynasty to dynasty in China, there were
three common characteristics (Zhang, 2006, p. 27):
First of all, most of the rules in their formality were customs or common usages
complied as norms. Secondly, the rules were patriarchal in nature and focused
primarily on obligations without specifying rights. (…) Thirdly, the punishment for
breach of agreement or violation of obligation was harsh, and mostly was punitive as
provided in the penal law.
In ancient times in China, moral standards were of key importance in regard to
enforcing contractual obligations, and Confucian philosophers played a key role in
advocating morality and virtue, which can be seen in the Confucian doctrine: “a
promise, once made, shall worth thousands ounces of gold.”
In recent Chinese history, we can see a move away from traditional reasoning
towards a reliance on civil law tradition. For example, the first draft of China’s Civil
Code was mainly based on the German and Japanese law models. In China, several
features characterise the legal contract. Firstly, a contract is a ‘civil legal act’
performed by natural persons, legal persons and other organisations of equal status.
Secondly, the purpose of a contract is to create, change and terminate a relationship
concerning civil rights and obligations. Finally, a contract is an agreement expressing
3
See Zhang Jifan, Evolution of the Chinese Legal Civilization, 287 (China University of Political Science
and Law Press, 1999).
Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471 465
the will of two or more parties. Unlike English contract law however, Chinese contract
law does not require a contract to be supported by any consideration, that is, some
sort of burden or obligation in the contract owed by one party to the other. In common
law, consideration is an essential element, as without there being any consideration,
the so-called ‘contract’ would be treated merely as a gift. In comparison, Chinese
contract law requires the mutual assent of the parties to the contract, and “it is
essential that the parties have a meeting of minds through the negotiations on a
voluntary basis” (Zhang, 2006, p. 91). Another important element in contract law is
that there is an ‘offer’ to enter into a contract, as stipulated in Article 14 of the CCL:
“a manifestation of an intent showing the desire to enter into a contract with others.”
Article 14 of the CCL also sets out that two particular requirements need to be met in
order to constitute an offer: (a) the contents shall be concrete and definite and (b) the
offeror shall be bound by his manifestation of the intent upon acceptance by an
offeree.
English law, as previously mentioned, consists of statutory law, common law, and
rules of equity. English contract law also emphasises the autonomy of the parties, a
principle that evolves from the western idea of a free market economy and that
parties should be free to determine their own interests, whereby a contract is a
voluntary agreement between two parties enforceable in law. A contract is formed
after one party makes an offer and another party accepts the offer by communicating
it to the other party or performing the terms of the offer. Under English contract law,
the essential elements of a contract include the following four key elements: offer,
acceptance, consideration, and intent to create legal relations.
A notable difference between the contract law in China and that in the UK is that
in the UK, contract law is largely derived from common law, with the law evolving
and being revised through court decisions. On the other hand, in China, contract law
is found in legislation.
4. Semantic equivalence
It is important to consider the concept of semantic equivalence given that L2
learners dealing with commercial contracts may need to know what the equivalent
word of one language is in another. However, even the task of describing and defining
equivalence has been controversial, and has produced an extensive amount of
literature on the topic. While strategies for successfully achieving terminological
equivalence in legal translation go beyond the scope of this study, we note that
various strategies have been utilized, including using “a semantic reference scheme,
componential analysis, and the principle of productivity and economy” (Cheng & Sin,
2008, p. 33). Given that legal systems, such as the Chinese and English legal systems,
are inherently different, it may be more appropriate, as Matulewska (2016, p. 163)
describes, to speak of “quasi-synonymous terms” instead of synonymous terms, since
absolute synonyms “that would have the same meanings and would be
interchangeable in all communicative (situational) and syntactic contexts” are almost
466 Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471
nonexistent. As Juodinytė-Kuznetsova (2015, p. 64) describes, “[a] more appropriate
way is to choose the closest natural equivalent that is capable of providing the legal
sense of the source term and leads to the favourable outcome”. Accordingly, L2
Chinese learners need to take into account both the legal meaning of a term as well as
the role that the term has in communication, and keep in mind that legal
implications, whilst they may be similar, may still have important distinctions in
different legal systems. Considering the legal term consideration used in the English
legal system, which refers to the exchange of something of value for something else,
we have already noted that it is not a requirement in Chinese contracts. Therefore, it
is impossible to produce a semantically equivalent Chinese word for the term
consideration in most cases. However, we can see the term duijia (对价), meaning
consideration, used in the Chinese context in specific cases. For example, in maritime
insurance contracts, the term duijia is used to refer to the premium paid by the
insured party and the promise by the insurer to compensate the insured party for any
liable damage suffered.
Having given a basic introduction to contextual differences in contract law in China
and the UK and discussed the use of contrastive semantic analysis and corpus
linguistics as well as the concept of semantic equivalence, we can now analyse and
contrast terminology found in Chinese and English commercial contracts. For the
purposes of this paper, we have chosen to focus on three terms commonly found in
commercial contracts: contract, agreement, and good faith. These terms were chosen
because despite their commonality, there exist important semantic differences when
directly translated from English to Chinese and vice versa, and these differences can
have significant consequences in the legal setting.
5. Results and Discussion
Contracts can come in a variety of forms, some governing simple transactions and
others governing more complex transactions. To be able to accurately translate the
terms in a contract, one must not only have adequate linguistic knowledge, but must
also be ready to handle the differences between different cultures and societies and
different legal systems. By undertaking a close analysis of specific terms used in
contracts, we are able to solve problems that occur in translation and more accurately
understand the meaning of specific terms and how they are used.
To undertake a contrastive analysis of contractual terms in Chinese and English,
the definitions of the terms are given and comparisons have been made between the
Chinese and English usage. To carry out this analysis, we consulted online English
Living Dictionaries developed by Oxford University Press, Elliott & Quinn’s Contract
Law (7th ed.) textbook, as well as legislation from China including the 1930 Civil Code,
the 1986 Civil Code, and the 1999 Contract Law. The analysis was undertaken by
four reviewers (including the authors) who each worked independently before
discussing their opinions as a group. This process required the reviewers who are
native Chinese speakers to analyse the terminology (contract, agreement, and good
Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471 467
faith) according to their usage in the Chinese context, and the reviewers who are
native English speakers to analyse the terminology according to their usage in the
English context. Each reviewer consulted online dictionaries and the abovementioned
texts in order to analyse semantic characteristics of the terminology and make
comparisons between Chinese and English. Finally, the reviewers had a group
discussion in order to contrast the terminology.
5.1. Case study 1: Contract / hetong (
合同
)
In the English language, the word contract is defined as “a written or spoken
agreement, especially one concerning employment, sales, or tenancy, that is intended
to be enforceable by law” (Oxford University Press, 2019). More specifically, there are
five basic elements that form a contract: an agreement (between parties), an intention
(to be legally bound by that agreement), certainty (of the terms of the agreement),
capacity (of the parties to contract), and consideration (provided by each party)
(Elliott & Quinn, 2009, p. 9). The word contract is of Latin origin, derived from the
word contractus meaning an agreement. The equivalent of contract in Chinese is
hetong, and this term was originally referred to as qiyue (agreement), as seen in the
1930 Civil Code. Similar to English law, “[a] Qi Yue (agreement), once made,
commonly implied a legal relationship under which an obligation was created”
(Zhang, 2006, p. 26) despite the code was not actually giving a definition of qiyue.
However, the 1930 Civil Code was not the first mention of qiyue in Chinese history.
As Zhang (2006) notes, there were three common characteristics through Chinese
history regarding qiyue, summarized as follows: most rules regarding qiyue were
treated as norms, rules mainly highlighted obligations and did not describe rights as
such, and punitive punishment was generally laid out to deal with a breach of a qiyue
in a harsh manner. In fact, the qiyue had a strong emphasis on the moral standards of
parties to the qiyue, influenced by the ideas of Confucian philosophers. By 1986, the
term for ‘contract’ had been clearly defined in China’s 1986 Civil Code, with Article 85
defining it as an agreement that establishes, modifies and terminates civil relations
between parties to the contract. Article 2 of the 1999 Contract Law then put forward a
definition of the contract, describing it as an agreement that establishes, modifies and
terminates the relations of civil rights and obligations between natural persons, legal
persons or other organisations of equal status. Comparing English contract law with
Chinese contract law, there is a notable difference. English contract law considers a
contract to be an act or promise by one party to another party for consideration. This
concept of promise is central to the definition of English contract law, whereas in
China, the emphasis is on what would create an agreement between parties and how
that agreement would be enforced. This analysis shows that although contract and
hetong can be considered equivalents, they do possess certain semantic differences
that could have important implications.
468 Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471
5.2. Case study 2: Agreement / xieyi (
协议
) / qiyue (
契约
)
In English law, it is important to note that while all contracts are agreements, not
all agreements are contracts. We can describe the contract therefore as a formal
written document, but it may also be made orally. An agreement is a more general
term, and may also refer to either a written or oral agreement. An agreement may be
described as an arrangement or understanding between parties, without necessarily
being legally binding and enforceable in a court of law. In contrast, a contract implies
an arrangement or understanding between parties, but the contents of the contact are
in fact legally binding and enforceable in a court of law. The situation is similar in
Chinese, where although all hetong are xieyi, not all xieyi are hetong; only those xieyi
that possess the elements needed to establish an enforceable contract can be
considered to be hetong. Accordingly, although the concepts embodied by the terms
xieyi and hetong are similar, the scope of their usage is different and cannot always be
interchanged. L2 Chinese learners will notice too that collocations of the two terms
differ. For example, some common phrases using xieyi include: koutou xieyi 口头协议
(verbal agreement), dacheng xieyi 达成协议 (reach an agreement; come to an
agreement) and sihui xieyi 撕毁协议 (tear up an agreement). Chinese has a
semantically related term, qiyue, which can also be translated as ‘contract’ or
‘agreement’. Similar to the word ‘agreement’ in English, qiyue may be construed
widely to refer to a promise or series of promises, which are not necessarily legally
binding. Alternatively, qiyue may be construed more narrowly to refer to a formal
document made according to law. Qiyue may also refer to a ‘covenant’ or ‘deed’ in
English, while ‘xieyi’ may refer to ‘protocol’ in English. From this analysis, we can see
that an ‘agreement’ may be translated into Chinese as qiyue or xieyi, depending on the
circumstances, and that qiyue can be translated as agreement, covenant or deed,
while xieyi may be translated as agreement or protocol. We can also see that although
the above-mentioned terms (agreement, xieyi and qiyue) are semantically related, the
concepts that these terms refer to have their respective differences.
5.3. Case study 3: Good faith / shanyi (
善意
)
The term ‘good faith’ comes from the Latin phrase bona fides. In ancient Rome, the
phrase bona fides was an obligation for both parties to adhere to and necessitated
legal and religious consequences if it was violated (Adam, 2009). In the English legal
system, good faith refers to the upholding of honesty and fairness. More specifically,
in contract law, there is an implied covenant of good faith, which denotes that parties
to a contract shall deal with each other honestly and fairly. The UK has gone so far as
to adopt good faith as a general principle of law
4
. This is in contrast to the US legal
system which has been less adverse to adopting good faith as a core concept of private
law. Accordingly, an implied covenant of good faith and fair dealing was incorporated
into the Uniform Commercial Code in Section 1-304 and later codified by the
4
See the case of Yam Seng Pte Ltd v Int Trade Corp Ltd where the High Court expressed a preference to
adopt good faith as a general principle of law.
Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471 469
American Law Institute as Section 205 of the Restatement (Second) of contracts
(Dubroff, 2006). It is important to note that there is no universally accepted meaning
of good faith, and that its meaning may differ depending on the type of contract and
the overall commercial context. However, we can summarise a duty of good faith as
entailing the following obligations: adhering to the spirit of the contract, observing
reasonable commercial standards of dealing, being faithful to the agreed common
purpose, acting consistently with the justified expectations of the other party,
preventing action that frustrates the purpose of the agreement, requiring disclosure of
all material facts to the other party, not knowingly lulling the other party into a false
belief, and not proving false information upon which the other party will rely on
(Garside et al., 2018). The term ‘good faith’ has an equivalent in Chinese with the
term shanyi (善意). The courts have taken a strict view of the concept of good faith,
where in the context of contract law, a contract will not be held to be enforceable if the
principle of good faith has not been observed (Zhang, 2006, p. 70). Similar to the
English understanding of good faith, in China it was first enunciated in the Civil Code
where it was described as “honesty and credibility”. The relevant law dealing with
good faith in China is found in Article 6 of the Contract Law that states “parties to a
contract shall observe the principle of honesty and credibility in exercising their
rights and fulfilling their obligations”. It has been claimed that this concept is rooted
in Confucian tradition as it is a moral norm that has lasted throughout Chinese
history and society (Zhang, 2006, p. 76). Similar to English law which does not seem
to have a concrete definition of good faith, Contract Law in China has not provided a
definition of the term either. However, we can gain an understanding of the Chinese
interpretation of the term by looking at how Chinese scholars have criticised the
American view, which considers good faith merely as “honesty in fact in the conduct
or transaction concerned” (Section 1-201 (19) UCC). Chinese scholars believe that this
interpretation of good faith does not adequately consider the interests of the parties or
the need to balance the interest of the parties with the interests of society (Zhang,
2006, p. 76). As Zhang (2006) describes, good faith interpreted in the eyes of
Confucianism covers more than just honesty, but faithfulness, trustworthiness, and
even credibility, and involves an obligation to balance the interests between parties
and society. Such ideas can be summed up neatly in the words of Confucius that
“people could not live without credibility” (min bu xin bu li - 民不信不立) (Zhang, 2006,
p. 76). As we can see from the above analysis, there appears to be a greater emphasis
in the Chinese context of moral values regarding good faith than in the English
context where courts have been traditionally less willing to interfere with the
autonomy of parties.
6. Conclusion
As can be seen from the analysis of the terms contract, agreement and good faith
above, it is not always possible to produce legal equivalence between two or more
languages. Factors affecting this possibility include whether or not the text has a legal
effect in the target jurisdiction, and whether or not a certain term in the source
470 Wu & Baccanello / Eurasian Journal of Applied Linguistics 5(3) (2019) 461–471
language has the same legal implications in the target language. L2 Chinese learners
dealing with commercial contracts and seeking to understand other legal texts ought
to keep in mind that such texts typically have a definite purpose. Accordingly, when
looking to find or confirm the corresponding term in the L2, the functional
equivalence of the word or phrase should be sought depending on the particular
context, or rather, the illocutionary act or intended meaning of the text (Cheng & Sin,
2008). Regarding the use of corpus in teaching languages for special purposes, both
teachers and students could make use of relevant corpora in order to gain insight into
semantic similarities and differences between terminologies across two or more
languages. For example, non-native Chinese learners studying Legal Chinese can
make use of online resources such as Beijing Language and Culture University’s BCC
corpus, in addition to online dictionaries. Online corpora often have the benefit of
providing a collocation function so that students can gain insight into the context that
a specific term is typically used in. Students can also refer to online resources
specifically related to legal language such as Stanford University’s China Guiding
Cases Project, which provides text of China’s leading cases and commentary. By
adopting such methods, students are able to raise their awareness during the
language learning process and avoid mistakes commonly made by L2 learners.
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