Terminology Sources: ICEX’s Guides to Business in Spain

A useful source of ES-EN legal terminology are the Guía de negocios en España and its English versión “Guide to Business in Spain.” An initiative of ICEX (the former Instituto Español de Comercio Exterior, now called ICEX España Exportación e Inversiones), the guides are written by the lawyers at Garrigues and translated by the law firm’s team of in-house translators. They are updated yearly, are available for downloading in pdf format* and cover many aspects of the Spanish legal system including:

  • Sistema fiscal (Tax System)
  • Legislación laboral y de seguridad social (Labor and Social Security Regulations)
  • Propiedad industrial e intellectual (Intellectual Property Law)
  • Legislación en material de sociedades (Company and Commercial Law
  • Sistema financiero español (The Spanish Financial System)
  • Aspectos contables y de auditoria (Accounting and Audit Issues)

*In Spanish: http://www.investinspain.org/guidetobusiness/index_es.htm

*In English: http://www.investinspain.org/guidetobusiness/index_en.htm

 

Latinismos : Expressions with animus

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of latinismos used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not in general use in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I have encountered most often in my work.

Latin expressions with animus

Spanish legal texts (particularly textbooks on Derecho civil and Derecho procesal) are riddled with dozens of Latin expressions containing the word animus, denoting “willingness,” “intent” or “intention.” The required animus contrahendi, for example, must be present in order for parties to enter into a valid contract, or the presence of animus auctoris will determine whether the perpetrator of a crime actually acted with criminal intent. Here are these and some of the other expressions with animus that translators may encounter in their work:

  • animus auctoris—intention or will to perpetrate a crime
  • animus contrahendi—intention to enter into a contract
  • animus derelinquendi—intention of abandoning property
  • animus domini—intent to own
  • animus donandi—intention of giving; intent to make a gift (donación)
  • animus furandi—intent to steal or commit theft
  • animus laedendi—intent to injure
  • animus necandi—intent to kill (willful element of homicide)
  • animus nocendi—intent to harm or cause damage
  • animus novandi—intention of the original parties to an obligation to replace an existing obligation or party to an obligation with a new one (novación)
  • animus possidendi—intention to possess as owner
  • animus recuperandi—intention to recover property
  • animus revocandi—intention to revoke a will
  • animus socii—intention or willingness to assist in the commission of a crime as accomplice
  • animus solvendi—intention of paying a debt or discharging an obligation (also rendered in Spanish as ánimo solutorio)
  • animus spoliandi—intent to deprive or dispossess another of possession or enjoyment of property or rights in property
  • animus testandi—testamentary intent; intention to make a will
  • animus transigendi—willingness to make concessions or compromise; willingness to settle or to enter into a settlement agreement (transigir)

Español jurídico : Meanings of unipersonal

The peculiar term unipersonal is frequently used in Spain in at least two different legal contexts. With respect to the Spanish court system, a distinction is made between juzgados that have only one sitting judge (called jueces), and tribunales on which several judges (magistrados) sit in panels of (usually) three judges. Where warranted, to underscore this distinction juzgados having only one sitting judge are often described as órganos unipersonales, while tribunales on which judges sit in panels are called órganos colegiados. The often-repeated literal translations of these expressions as “unipersonal courts” and “collegiate courts” would likely be more appropriately rendered respectively as “single-judge courts” and “multi-judge courts” (or) “courts in which judges sit in panels.”

In other respects, in the context of corporate law unipersonal is used to describe companies with a single member or shareholder. Thus, a Sociedad de Responsabilidad Limitada Unipersonal (abbreviated S.R.L.U. and more often known simply as a Sociedad Limitada Unipersonal, or S.L.U.) may be described as a “single-member limited liability company,” while a Sociedad Anónima Unipersonal (S.A.U.) is a “single-shareholder corporation.” (In that regard, owners of Spanish limited liability companies are perhaps more appropriately described as “members” rather than “shareholders,” since by law owner interests in S.L.’s cannot be called “shares” [acciones], but rather are known as participaciones.)

Perhaps it should be underscored that in business law contexts unipersonal may be used with very different meanings in Spain and in Spanish-American jurisdictions. As indicated above, in Spain unipersonal designates a single-shareholder corporation (sociedad anónima unipersonal) or a single-member limited liability company (sociedad de responsabilidad limitada unipersonal). But, for example, in Chile and Uruguay unipersonal is used in the expressions empresa unipersonal (and empresario unipersonal) to denote a business entity similar to what in the US is known as a “sole proprietorship” (and  its owner, the “sole proprietor” or “sole trader” in England and Wales). In  contrast, in Spain a “sole proprietor” is known as an empresario individual or comerciante individual.

Multiple Meanings of “draft”

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

draft

“Draft” is used with several different meanings in legal language. As a verb “to draft” means redactar, and is a synonym of “to draw up,” as in “to draft (or) draw up a contract.” In that regard, reference to a “draft version” of a document may describe a borrador or versión inicial. In other respects, in parliamentary practice a “draft bill” is an anteproyecto de ley, a precursor to a “legislative bill” (proyecto de ley) to be submitted to parliament or to a legislative assembly for approval. And in the context of negotiable instruments (títulos valores), “draft” is often used in the US as a synonym for “bill of exchange” denoting a letra de cambio.

 

 

Translating Spanish Appellate Terminology

There are several keys to deciphering Spanish appellate terminology. The first is to have a clear understanding of the difference between recursos devolutivos and recursos no devolutivos. A recurso devolutivo is an appeal from (or against)* the decision of a trial court (or administrative agency) that will be heard and adjudicated by a higher court (or higher administrative authority). When an appeal is heard by a higher court or administrative authority, it is said to have efecto devolutivo. In contrast, a recurso no devolutivo is actually a petition for a rehearing or for reconsideration filed before the same court or administrative agency that issued the original decision being appealed.

This distinction may not be readily understood by English-speaking audiences since in Anglo-American law an appeal is, by definition, to a higher court or authority. Translations dealing with any of the many recursos no devolutivos existing in Spanish procedure should clearly reflect the fact that the appeal will be adjudicated by the same court or authority that issued the original decision. For this reason, this type of remedy is often described as a “reconsideration appeal,” since in essence it is a motion petitioning a court or administrative authority to reconsider and reverse its initial ruling.

A second aspect to consider is whether the appeal suspends the execution (enforcement) of the original decision while the appeal is pending (called efecto suspensivo). When an appeal is said to be admitido en un solo efecto, this is a reference to the fact that the appeal tiene efecto devolutivo, i.e., is a recurso devolutivo, an appeal to a higher court or authority. The expression recurso admitido en ambos efectos denotes a recurso devolutivo con efecto suspensivo, that is, an appeal to a higher court or authority that also stays (suspends) the execution of the lower court’s judgment while the appeal is pending.

A third point is to distinguish between recurso (or recurrir) and apelación (or apelar), which are often assumed to be synonymous. But recurso is actually a generic term for many types of appeal, while apelación denotes a specific remedy (called recurso de apelación), which is always adjudicated by a higher court or authority (i.e., it is a recurso devolutivo). Translators may be prompted to assume that recurrir and apelar are synonyms, given that recurso and apelación do indeed appear as such in many bilingual legal sources that inevitably translate both as “appeal.” However, they are not interchangeable. As indicated above recurso is a broad term used to denote generically many types of appeals and legal remedies, both judicial and administrative. Thus, recurso may be a superordinate term meaning “appellate remedy” or may refer to a specific type of appeal, depending on the context. In contrast, recurso de apelación specifically denotes an appeal from the decision of a trial court (tribunal de primera instancia). In that regard, recurso de apelación may be described as an “appeal in second instance” (or perhaps an “appeal to an intermediate appellate court” in those instances in which further appeal is available if the apelación is unsuccessful). The verb describing the filing of a recurso de apelación is recurrir en apelación.

Another classification divides appeals into recursos ordinarios filed as of right, and recursos extraordinarios that may only be filed in extraordinary circumstances and for reasons defined by law (motivos tasados en la ley). Appeals to the Spanish Tribunal Supremo, called recursos de casación, are extraordinary appeals (even the one called recurso de casación ordinario). Although often translated literally as “casation appeals,” recursos de casación may likewise be rendered simply as just that: “appeals to the Supreme Court.”

A final point to remember (and a source of much confusion) is the fact that the same type of appeal may have different names in different jurisdictions. For example, in Spain the recurso no devolutivo filed in civil courts is called recurso de reposición. That same type of appeal in the criminal and labor courts has different names depending on whether it is filed from a decision issued by a juzgado or órgano unipersonal (single-judge court) or tribunal or órgano colegiado (multi-judge court). Thus in criminal procedure recursos no devolutivos filed from certain decisions of juzgados de instrucción are called recursos de reforma, while recursos no devolutivos from the decisions of multi-judge criminal courts are called recursos de súplica. A similar distinction is a feature of labor procedure in which there are two recursos no devolutivos, the recurso de reposición (filed from certain orders issued by juzgados de lo social) and the recurso de súplica (filed from certain orders issued by the Salas de lo Social de los Tribunales Superiores de Justicia). This disparity in nomenclature likewise exists among recursos devolutivos. Indeed, as noted above, what might generically be termed a recurso en segunda instancia is a recurso de apelación in civil, criminal and administrative procedure, but is called recurso de suplicación in labor proceedings.

This summary certainly doesn’t address all of the pitfalls of translating Spanish appellate terminology and ultimately, unless the context would dictate otherwise, the majority of these recursos may be translated simply as “appeal.” Likewise, both recurrente and apelante, as well as recurrido and apelado can usually be rendered respectively as “appellant” and “appellee” (or “respondent” in British English).

Read more here:

Víctor Moreno Catena and Valentín Cortés Domínguez. Derecho Procesal Civil, Parte General and Derecho Procesal Penal (Valencia: Tirant lo Blanch, 2015) pp. 339-398 and 579-655; Víctor Moreno Catena, dir. Esquemas de Derecho Procesal Laboral (Valencia: Tirant lo Blanch, 2013, pp. 117-135.

*US usage: “to appeal from a judgment;” form preferred in British English: “to appeal against a judgment”

 

 

 

Mistranslations (?) of “personal property”

Although not a frequent translation mistake, I have seen “personal property” translated several times literally as bienes personales. But of course there is really nothing personal about personal property! Also called “personalty” and sometimes “chattels,”  personal property is the common law counterpart of bienes muebles. This contrasts with “real property,” also called “real estate” or “realty,”  which is bienes inmuebles in Spanish. In English-speaking civil law jurisdictions, in bijural jurisidictions (such as Canada) and in international organizations such as the EU,  personal property and real property are also often referred to respectively as “movables”  and  “immovables.” Thus, (just as a recap):

bienes muebles—personal property; personalty; chattels; movable property; movables

bienes inmuebles—real property; real estate; realty; immovable property; immovables

Expressing Civil Law Concepts in Common Law Terms: frutos ; disfrute

The property law section of the Spanish Civil Code contains multiple references to frutos, and it is obvious that the literal rendering “fruits” is probably not the most natural sounding in English (although this is indeed the term used in the Civil Code of Louisiana). General references to frutos may often be translated simply as “proceeds.” As an example, derecho del acreedor a los frutos de la cosa might be rendered as “creditor’s right to proceeds from the property.” Or, with respect to the obligation to make restitution after a contract is rescinded, restitución recíproca de las cosas que fueron objeto del contrato con sus frutos y el precio con sus intereses could be translated as “mutual restitution of the goods/property that were the subject-matter of the contract with any proceeds therefrom, and the price paid plus interest.”

A distinction is traditionally made between frutos naturales, frutos industriales and frutos civiles. Frutos naturales are naturally-occuring proceeds from property, such as timber and animal offspring. Frutos industriales are labor-produced proceeds from property, such as cultivated crops. And frutos civiles denotes income from property, such as rent, interest or dividends. These three concepts aren’t easily rendered with one-word terms, although frutos naturales may be described (as above) as “natural proceeds from property,”  frutos industriales may be translated as “cultivated crops” and frutos civiles perhaps as “revenue from property.”

Regarding the term disfrute, expressions such as derecho real de goce and derecho real de disfrute are generally treated as synonymous and translated as “right to the enjoyment of property.” But it should be noted that, strictly speaking, disfrute refers specifically to enjoyment of the proceeds (frutos) of property, el derecho de hacer suyo los frutos que la cosa produzca.