Terminology of Civil Law Systems


For ES-EN translators from common law jurisdictions, here is a short bibliography on the basic features of civil law systems and civil law-common law terminology:

Apple, James G. and Robert P. Deyling. A Primer on the Civil-Law System. Washington, D.C.: Federal Judicial Center, 1995. http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf

Glendon, Mary Ann, et. al. Comparative Legal Traditions in a Nutshell. St. Paul: West Academic Publishing, 2015.

Kinsella, Stephan. “A Civil Law to Common Law Dictionary.” Louisiana Law Review, Vol. 54, No. 5 (May 1994). as published

Kinsella, Stephan. “Civil-Law Terminology and its Relation to Common-Law Terminology” Pennsylvania Bar Association Young Lawyers’ Division Newsletter, Vol. 20, No. 2 (Spring 1995), pp. 12-14. Civil-Law Terminology and its Relation to Common-Law Terminology

Lawson, F.H. A Common Lawyer Looks at the Civil Law. Ann Arbor: University of Michigan Law School, 1953; Praeger, 1977. (Available from HeinOnLine)

Lundmark, Thomas. Charting the Divide between Common and Civil Law. NY: Oxford University Press, 2012.

Malavet, Pedro A. “Seminar: An Introduction to the Civil Code.” http://nersp.nerdc.ufl.edu/~malavet/seminar/ccmain.htm

Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. Stanford: Stanford University Press (3rd ed.), 2007.

Tetley, William, “Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified)” Parts I and II. 4 Uniform Law Review 1999-3, 591-619 and 1999-4, 877-907. Mixed Jurisdictions: Common Law v. Civil Law – DigitalCommons …


Translating carga de la prueba

Legal Spanish for Translators

carga de la prueba

burden of proof; burden of persuasion; burden of production

Carga de la prueba is easily recognizable as an appropriate rendering for “burden of proof.” But carga de la prueba is also sometimes offered as a translation for “burden of persuasion,” perhaps because there isn’t really a similar Spanish law concept. Indeed, in Anglo-American law the concept of burden of proof entails two different aspects: “burden of persuasion” and “burden of production” (also called “burden of going forward with the evidence”).

This is evident in the definitions provided in Black’s Law Dictionary (8th ed.):

 Burden of proof–A party’s duty to prove a disputed assertion or charge. The burden of proof includes both the burden of persuasion and the burden of production.

 Burden of persuasion–A party’s duty to convince the fact-finder to view the facts in a way that favors that party. In civil cases, the plaintiff’s burden is usually “by a preponderance of the evidence,” while in criminal cases the prosecution’s burden is “beyond a reasonable doubt.”

 Burden of production–A party’s duty to introduce enough evidence on a issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or directed verdict.

 The fact that Spanish may not have terminological equivalents for both “burden of persuasion” and “burden of production” was underscored by Professor Fernando Gómez Pomar (professor at the Universitat Pompeu Fabra Law School in Barcelona) in an article published in the InDret law journal in 2001:*

 Las reglas sobre carga de la prueba comprenden, pues, de un lado, la determinación del umbral de certidumbre que requiere el juzgador para satisfacer la pretensión y, de otro, la determinación de cuál de las partes ha de suministrar las pruebas para alcanzar dicho umbral, so pena de recibir una decisión adversa sobre el fondo del asunto si no lo hace.

En el ámbito jurídico norteamericano, ambos aspectos son analizados independientemente dentro de la genérica “burden of proof”: se habla así de “burden of persuasion”, “level of confidence” o “standard of proof” … para referirse al primero, frente a “burden of production” o “burden of proof” en sentido estricto.

En España y, en general, en Europa, no se realiza con nitidez –o no se realiza en absoluto- la distinción entre las dos vertientes de la carga de la prueba. Tal vez ello se deba a que implícitamente se considera que sólo hay un nivel de confianza o convicción jurídicamente admisible en el juzgador acerca del acaecimiento de un cierto suceso.

Thus, the single expression carga de la prueba may have to suffice when rendering either “burden of proof” or “burden of persuasion” in English, unless the context requires clearly distinguishing the two by providing definitional translations. In contrast, I believe that “burden of production” (or “burden of going forward with the evidence”) does have an equivalent concept in Spanish and may be appropriately rendered as carga de aportación de la prueba.

*Fernando Gómez Pomar. Carga de la prueba y responsabilidad objetiva. InDret 1/2001, pp. 1-17. http://www.indret.com/pdf/040_es.pdf

Ellipsis in bien protegido

Ellipsis in Legal Spanish

Bien protegido might appear to refer to “protected assets (or) goods,” and the expression has sometimes been mistranslated as such, or has simply been deemed an adjective phrase and rendered as “well-protected.” But bien protegido is actually an ellipsis for bien jurídico protegido (also called bien jurídico tutelado), a criminal law term (from the German Rechtsgut) that designates the specific interest protected under the individual provisions of the Spanish Criminal Code.

As examples, in the crime of homicidio, the legally-protected interest (bien jurídico protegido) is la vida humana.* With respect to delitos de amenazas, the legally-protected interests include “el sentimiento de tranquilidad y el ataque a la libertad en la formación de la voluntad…”* In the crime of failure to come to the aid (omisión del deber de socorro) the bien jurlidico protegido is “la solidaridad humana.”* And in crimes of theft, robbery and burglary (hurto, robo con violencia en las personas y robo con fuerza en las cosas) the legally-protected interests are posesión or propiedad.*

*Source for the examples cited above: Tomás Vives Antón, et.al., Derecho Penal, Parte Especial, Valencia: Tirant lo Blanch, 2015.

Ellipsis in Legal Spanish: arrendamiento para uso distinto

Ellipsis in Legal Spanish

The expression arrendamiento para uso distinto immediately prompts the question ¿distinto a qué? The complete expression with its ellipted part included is arrendamiento para uso distinto del de vivienda, and it has been translated perhaps rather clumsily as “non-dwelling lease,” “lease for other than habitation” and “lease intended for other than residential purposes.”

But as used in Spain arrendamiento para uso distinto (del de vivienda) simply denotes the “leasing of non-residential property” (literally, “leasing for use other than as a residence.”) And, in this context, uso distinto refers to “non-residential use” or “use for non-residential purposes.” Thus, a contrato de arrendamiento para uso distinto is  a “contract to lease property for non-residential purposes” that may often be translated simply as “non-residential lease.”

Ellipsis in Legal Language

Ellipsis in Legal Spanish

No one can dispute the fact that legal language is a foreign language that future lawyers must begin to master from their first day in law school. With much dedication, translators can also acquire a solid knowledge of legal terminology from law school textbooks, well-selected dictionaries and many other legal sources. But lawyers don’t always go by the book and sometimes use their own telegraphic language, often leaving out half of any given expression. This may make translation nearly impossible for the uninitiated and, in effect, the meanings of certain legal Spanish phrases containing ellipses often elude translators. Spanish lawyers and legal professionals may be quite familiar with such expressions, but they are largely absent from bilingual legal sources.

In blog entries under “Ellipsis in Legal Language” I will offer a sampling of ellipses that I have found to be the most common, together with an explanation of the ellipted parts and suggestions as to how the expressions might be rendered in English. Many would be obvious in certain contexts, but may be difficult to understand if used in isolation. And of course there may be hundreds more: that’s just the way lawyers talk.

False Friends: disolución de matrimonio ; dissolution of marriage

Oh, no! False Friends
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.

disolución de matrimonio; dissolution of marriage

These expressions are sometimes false cognates. Under Spanish law disolución de matrimonio (or disolución matrimonial) is a broad term encompassing the three legal means by which a marriage may be terminated: disolución de matrimonio por muerte, por declaración de fallecimiento de uno de los cónyuges o por divorcio. In contrast, in many English speaking jurisdictions the expression “dissolution of marriage” is used almost exclusively as a synonym (or perhaps a euphemism) for “divorce,” and may be limited to that meaning. Thus, “dissolution of marriage” may often be correctly rendered in Spanish as divorcio while, depending on the context, the appropriate English translation of disolución de matrimonio may either be “divorce,” “termination of marriage by death” or “termination of marriage by a judicial declaration of death (of a missing spouse).”

Español jurídico: Fundamentos jurídicos (o) Fundamentos de Derecho

Legal Spanish for Translators

These expressions are often translated broadly as “legal grounds” or “legal basis,” which may be appropriate renderings in certain contexts. But it should be noted that they have very specific meanings when used in Spanish court opinions. In Spain judgments (sentencias) are commonly divided into two sections, Antecedentes de Hecho and Fundamentos Jurídicos or Fundamentos de Derecho. The former refer to the facts that the court deems proved, the “facts as found,” while the latter refer to the legal grounds or points of law on which the court is basing its final ruling (fallo). Following the terminology of US procedure, in this context Antecedentes de Hecho might be appropriately translated as “Findings of Fact,” while Fundamentos Jurídicos or Fundamentos de Derecho may be rendered as “Conclusions of Law.”

Expressing Civil Law Concepts in Common Law Terms: estado civil

ExpressingCivil LawConcepts

Many bilingual dictionaries translate estado civil as “marital status,” and often that is exactly what it means. But translators should bear in mind that in Spain (and in Spanish-speaking civil law jurisdictions) the expression estado civil is a much broader concept than “marital status” and, depending on the context, may refer to matrimonio, filiación, edad, incapacidad judicial declarada, nacionalidad or vecindad civil. When correctly translated as “marital status,” estado civil refers to whether a person is single (soltero/a), married (casado/a), widowed (viudo/a), separated (separado/a) or divorced (divorciado/a), or whether the marriage has been annulled (nulidad matrimonial). In the context of filiación (“filiation” or the “parent-child relationship”) estado civil refers to one’s status as padre/madre or hijo/hija. With respect to edad (“age”), one may be menor de edad (a “minor” or “infant,” now called simply “child” in England and Wales) or mayor de edad (of “legal/full age”), that is, persona que ha alcanzado la mayoría de edad (“person who has reached the age of majority”). Capacidad (“legal capacity”) includes the status of capaz (“competent”) or incapaz (“incompetent”) in the case of persons adjudicated incompetent by a court of law (incapacitados judicialmente). Under the civil status of nacionalidad, one may be español (a “Spanish national” or “Spanish citizen”), extranjero (a “foreign national” or “alien”) or apátrida (a “stateless person”). And vecindad civil refers to one’s region of habitual residence, which determines submission to general civil legislation (the Código Civil) or to specific local law (Derecho foral o especial). (See here for additional comments on vecindad civil).

Legal Meanings of “back”

Common Words with Uncommon Legal Meanings
In his 1963 work “The Language of the Law,” the eminent legal linguist David Mellinkoff observed that legal discourse often uses “common words with uncommon meanings.” Indeed, in both Spanish and English, common words and expressions often take on unexpected meanings when used in legal contexts, and there are many simple, seemingly inoffensive everyday words and expressions that can prompt translation mistakes if their special legal meanings are ignored.  In this section I include some of the presumably simple legal English expressions that my students and translation clients have found most puzzling, along with a selection of legal Spanish terms that may stump translators when initially entering the legal translation field.


“Back” is used in several legal expressions with the meaning of atraso or atrasado. “Back orders” are pending orders that have not yet been filled (pedidos pendientes de servir). “Back taxes” refers to taxes that are due but that remain unpaid (impuestos devengados y no satisfechos). Similarly, “backpay” may denote accrued but unpaid wages (salarios devengados y no cobrados). In that regard, “backpay award” may denote a judge’s (or other official’s) ruling that an employee or ex-employee is entitled to accrued but unpaid wages. Thus, in Spanish labor procedure and in the context of a proceeding for wrongful dismissal (or) wrongful termination (despido improcedente) “backpay award” could be appropriately rendered as condena al pago del salario de tramitación.

Multiple Meanings of “attachment”

Legal Terms with Multiple Meanings
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.


“Attachment” is used in legal contexts with at least three distinct meanings. In the law of contracts, it most often denotes a document that is affixed to (and considered a part of) a contract (un adjunto; el documento adjunto). In this sense, in addition to “attachment,” a document affixed or appended to a contract may also be called a “schedule,” “appendix” “exhibit,” or sometimes an “annex.”

In contrast, in civil procedure, “attachment” has a radically different meaning, often referring to the judicial seizure of a defendant’s property or wages to secure a judgment, being one of the provisional remedies (medidas cautelares) that a plaintiff may seek against a defendant. Common expressions used in this context include “pretrial attachment” (embargo preventivo), “attachment of property (or) assets” (embargo de bienes) and “attachment of wages (or) earnings” (embargo de salarios).

And “attachment” is likewise used in a third, lesser known sense in which “attach” denotes “becoming attributed to or operative.” Thus, an expression such as “attachment of liability” refers to the moment in which civil liability arises or is incurred. This meaning of “attachment” is expressed in Spanish legal documents as nacimiento: “attachment of liability” (nacimiento de la responsabilidad civil). The verb “attach” is used similarly, being synonymous with “arises” or “is incurred”: “tax liability attaches upon receipt of income” (la obligación tributaria nace al percibir los ingresos).