Kevin Oheix Aug 27, 2018:

@ Charles Davis Ok, maybe not "shall" after all.

The more I read the source text and other opinions and the more I think it could simply express a possibility in the future; what [modal] happen should (en cas de) any [transfer of securities]...

Here are other instances with "comprendrait" which might help:

"Selon le texte proposé pour le futur article 262 du code de procédure pénale (...) la commission chargée de dresser la liste annuelle du jury de la cour d'assises comprendrait notamment " cinq conseillers généraux désignés chaque année par le conseil général et ... cinq conseillers désignés ... ".
https://www.senat.fr/rap/l96-275/l96-27558.html

"Le ministère de la Justice a annoncé lundi qu'un texte sur la justice des mineurs serait présenté par le gouvernement au premier semestre 2015. Il comprendrait notamment la suppression des tribunaux correctionnels pour mineurs."
http://www.leparisien.fr/faits-divers/video-tribunaux-pour-m...

Tony M Aug 27, 2018:

@ Asker Surely in this instance, 'would' ia apropriate, as it sems to go with a condition: 'en cas de...'

Joshua Parker (asker) Aug 26, 2018:

Perhaps it's also worth noting here that, just after the list of rights, the conditional is used again:
En contrepartie des droits susmentionnés, l'Investisseur AIR *souscrirait*, dans le cadre du nouveau pacte d'associés, une obligation de sortie totale, en cas d'offre ferme d'acquisition portant sur la majorité des titres de la Société.

Joshua Parker (asker) Aug 26, 2018:

I'm inclined to agree that the use of the two tenses together necessarily produces a different interpretation in FR, so I guess the question is whether or not this was done deliberately by the person who drafted the document (or whether it's a simple oversight).
Given the difference in opinions, I'll mention it to the client.
As an interim solution, I thought perhaps "should" might work; it retains some of the ambiguity of the FR, in that it most likely will happen, but would not necessarily constitute a breach of contract if it didn't. Thoughts?
That said, it does seem that the only way to come up with, à coup sûr, the most suitable translation would be to consult the author.

Charles Davis Aug 26, 2018:

@Kevin So do you think that setting-up the "pacte d'associés" is an obligation under this agreement, and that it would have made no difference if they had said "comprendra" instead of "comprendrait"?

Kevin Oheix Aug 26, 2018:

"Comprendrait notamment :" can also mean "should include inter alia:"

It's a contract here so I would say "shall".

Charles Davis Aug 26, 2018:

After all, "bénéficiera" is backed up by "Le Fondateur s’engage à et se porte fort de ce que l'Investisseur AIR bénéficie".

Charles Davis Aug 26, 2018:

future vs conditional here My feeling here is that the future is being used, as it often is in contractual language, in the sense in which "shall" (as opposed to "will") is customarily used in EN contracts: to express obligation. This use of "shall" in contracts is controversial nowadays, particularly in the US, but that's another story; the point is that the future tense here seems to me to imply what is required to happen, what must happen, and ultimately, if it doesn't happen the contract will have been breached. The conditional "comprendrait", on the other hand, carries no such implication. The creation of this "pacte d'associés" is relevant to the agreement but not part of its requirements; it's something that is going to happen. They don't say "comprend" because it doesn't exist yet. They don't say "comprendra" because that could imply that it's a requirement of this agreement. So they say "comprendrait". In principle, I suppose the inclusion is conditional upon the creation, implying "if implemented", but my impression is that the plan is firm and that the future tense is appropriate in English.

Perhaps you could distinguish them by using "shall" for the futures and "will include" for this.

Tony M Aug 26, 2018:

@ Asker For the very reason stated by A/T, the fact that this conditional is used in the same paragraph as simple futures suggests that there is a deliberate difference in meaning intended.
By your suggestion of 'would', I think you are perhaps overlooking some of the other uses of the conditional in FR, notable perhaps here with the slightly more tentative suggestions of "is said to include..." or "is thought to..." or "allegedly..." etc. To me, the suggestions is that the writer maybe doesn't know for sure the precise detail of these undertakings, so is "playing safe" as it were. You may be able to figure out from the rest of your context if this scenario is possible / probable.
I would certainly avoid translating by 'would' until you've clarified!
Note, of course, that this usage of 'would' is something that would indeed previously have been used in EN, but is now archaic!