When learning legal terminology in a bilingual context one of the first pitfalls encountered are so-called “false friends,” words or expressions that appear to be cognates, but are actually unrelated in meaning. Many years ago I set about identifying the “Top 40 False Friends in Spanish-English Legal Translation.” As the list grew I had to change the title to “101 False Friends.” In my collection I now have well over that number and will be sharing some of them in this blog. To be fair, many are only partial false friends that may actually be cognates when used in one branch of law, while perhaps qualifying as false friends in another legal practice area. And in some instances the cognate may simply not be the most appropriate rendering in legal contexts.
Activo and pasivo are used in many different areas of legal practice in which it would be meaningless to translate these terms literally as “active” and “passive.” When used as nouns, in accounting (contabilidad) activo often refers to “assets,” while pasivo denotes “liabilities:” activo circulante (“current assets”); activo fijo (“fixed assets”); activo de explotación (“operating assets”); pasivo circulante (“current liabilities”); pasivo a largo plazo (“long-term liabilities/loans”), etc. Likewise, in insolvency law (Derecho concursal) the expression masa activa del concurso denotes the assets of an insolvent’s estate, while masa pasiva del concurso refers to his liabilities, including all debts owed to creditors.
In civil procedure (Derecho procesal civil), the adjective activo/a often refers to the “plaintiff” or “claimant” (demandante), while pasivo/a denotes the “defendant” (demandado). Thus, legitimación activa is “plaintiff’s standing” or “standing to sue,” while legitimación pasiva is “defendant’s standing” or “standing to be sued.” Similarly, litisconsorcio activo refers to the “joinder of plaintiffs/claimants” and litisconsortes activos are “co-plaintiffs” or “co-claimants,” while litisconsorcio pasivo is “joinder of defendants” and litisconsortes pasivos are “co-defendants.”
In the Law of Obligations (Derecho de obligaciones or Derecho de la relación obligacional), an acreedor (“creditor” or “obligee”) is often referred to as the sujeto activo de la obligación (the party entitled to demand performance of the obligation), while the deudor (“debtor” or “obligor”) may be described variously as the sujeto pasivo de la obligación (the party who has undertaken to perform an obligation) or the sujeto activo del cumplimiento (the party who owes performance).
In that regard, solidaridad activa refers to an obligation in which a single debtor owes an obligation to two or more joint and several creditors, any of whom may demand performance of the entire obligation, while solidaridad pasiva denotes an obligation in which two or more debtors are jointly and severally liable to a single creditor for the same obligation and, thus, any of the debtors may be compelled to perform the entire obligation.
In criminal law (Derecho penal), sujeto activo may refer to the “principal” or “perpetrator” of a crime (often called autor del delito), while sujeto pasivo may, in turn, denote the “victim” (ofendido or víctima del delito). And with respect to specific offenses, for example, cohecho activo is the crime of “offering a bribe” to a public official, while cohecho pasivo denotes a public official’s accepting or “taking a bribe.”
In tax law (Derecho tributario), sujeto pasivo is one of several terms for “taxpayer,” and in this context the sujetos activos are of course the “tax authorities” empowered to levy and collect taxes. Thus, for example, the expression sujeto pasivo por obligación personal is often used to denote a “resident taxpayer,” while sujeto pasivo por obligación real refers to a “non-resident taxpayer,” concepts that may likewise be expressed as sujeto pasivo residente and sujeto pasivo no residente.
In other respects, in electoral law (Derecho electoral), sufragio activo refers to the “right to vote,” while sufragio pasivo is the “right to stand for election.”
And finally, clases pasivas is an additional expression in which pasiva cannot appropriately be translated literally as “passive” (although it often appears as such, even in “official” translations). Sometimes mistranslated as “retired civil servants,” clases pasivas (del Estado) is actually a broader concept, referring to civil servants (funcionarios públicos) and their relatives or dependents (parientes o dependientes) who receive any type of pension or other benefit from the state, including retirees (jubilados), widows and widowers (viudas y viudos), orphans (huérfanos) or beneficiaries of disability pensions (beneficiarios de pensiones por incapacidad). In that regard, depending on the context clases pasivas may perhaps be translated broadly as “beneficiaries of civil service pensions” or “recipients of civil service benefits.”