Several verbs can be chosen to describe the act of changing the terms of a legal document, such as a contract, a statute or a constitution. These include the verbs “amend” (xiugai) and “modify” (biangeng). Is there a distinction in meaning between these words, or are they interchangeable?
My research suggests that the two words are essentially interchangeable. However, there are certain differences in terms of the contexts in which these words are used. This column explains some of these differences in common law jurisdictions and in China. It also examines the circumstances in which a contract may be amended or modified, and the interesting question of whether a court has the power to amend or modify a contract.
Let’s first consider the use of the words “amend” and “modify” in English and Chinese.
The English word “amend” derives from the Latin word amendare, which means “to free from error”, “to correct” or “to improve”. The traditional emphasis was therefore on correcting an error in a document.
On the other hand, the English word “modify” derives from the Latin word modificare, which means “to limit” or “to control”. This meaning is reflected in one of the contexts in which the English verb “modify” is used; namely, when we refer to a word such as an adjective “modifying” another word such as a noun.
However, the definition of the English word “modify” is broader and includes “to change” or “to vary”. The English word “vary” derives from the Latin word variare, which means “to change” or “to alter”.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.