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”.
Although the words “amend”, “modify” and “vary” can be used to describe a change to the terms of a pre-existing contract (i.e. a contract that has already been signed), usage varies between jurisdictions in the common law world. In the UK and Australia, for example, contract law textbooks commonly use “vary” or “variation” when describing the law governing changes to the terms of a contract.
In addition, “amend” and “amendment” is commonly used by lawyers and the parties to a contract when they talk about changing the terms of a contract. This is reflected in the following boilerplate clause, which often appears in commercial contracts:
This contract may be amended only in writing signed by a duly authorised representative of each party.
In the US, on the other hand, the practice is different. Although often used by lawyers in an informal sense, the words “amend” and “amendments” are commonly used to describe a change to legislation (e.g. a constitutional amendment) or a change to a legal process or proceeding (e.g. an amendment to a judgment or pleading). When describing a change to a contract, the preference in the US is to use the words “modify” and “modification”. Accordingly, the following clause is commonly seen:
This contract may be modified only in writing signed by a duly authorised representative of each party.
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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 law.asia.