Expressing Civil Law Concepts in Common Law Terms: estado civil

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

“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

“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).

Mistranslations(?) of socio

“Mistranslations?” includes examples of what I believe may be considered mistranslations that I have encountered over a twenty-five year period while working as a legal translator and teacher of legal English in Spain. Some may be actual mistranslations, while others are perhaps all-too-literal renderings of expressions that may have sufficiently close counterparts (“functional equivalents”) in the other language. Still others are translations that may simply not be accurate in the context in which they originally appeared.

socio

The noun socio has several different meanings in business law contexts and is therefore sometimes a source of translation mistakes. Informally, socio is often used loosely to refer to one’s “colleague” or “business partner,” without implying that the persons in question are actually members of a partnership or other business organization.

Obviously socio may likewise be translated as “partner” when the reference is to a member of an actual partnership. In Spain there are three types of partnership: sociedad (regular) colectiva, often called a sociedad colectiva simple, abbreviated S.R.C. or S.C. (“general partnership”); sociedad comanditaria or sociedad en comandita, abbreviated S. Com. or S. en Com. (“limited partnership”) and sociedad en comandita por acciones, abbreviated S. Com. en A. (“partnership limited by shares”). Examples of expressions in this context in which socio may be accurately rendered as “partner” include socio colectivo (“general partner”); socio comanditario (“limited partner”) and socio gerente (“managing partner”).

Members of a Spanish corporation (sociedad anónima, abbreviated S.A.) are also often referred to as socios. But since S.A.s are not partnerships, socio cannot be translated here as “partner,” but rather would be more accurately rendered as “shareholder,” given that member interests in S.A.s are divided into shares (acciones). For example, socio único denotes the “sole shareholder” of a sociedad anónima unipersonal or S.A.U. (a “single-shareholder corporation”). Thus socios in a sociedad anónima are “shareholders” or “members,” but never “partners.”

Members of a Spanish limited liability company (sociedad de responsabilidad limitada or sociedad limitada, abbreviated S.R.L. or S.L.) are likewise referred to as socios. But once again, since S.L.s are not partnerships, socio cannot be translated here as “partner.” In addition, to distinguish limited liability companies from corporations, by law member interests in S.L.s cannot be called shares (acciones), but rather are known as participaciones. Thus members in a sociedad limitada are never referred to as “shareholders” (accionistas), so perhaps the most appropriate translation for socios of an S.L. is simply “members.” And in this context the expression socio único denotes the “sole member” of a sociedad limitada unipersonal or S.L.U. (a “single-member limited liability company”).

It is unfortunate that socio has been erroneously rendered as “partner” in a much-quoted translation of the 2010 Spanish Corporate Enterprises Act (Ley de Sociedades de Capital) available on the Ministerio de Justicia’s website.* This law governs three of the business entities mentioned above: corporations (sociedades anónimas), limited liability companies (sociedades limitadas) and partnerships limited by shares (sociedades comanditarias por acciones). Only the latter is actually a partnership and, thus, in this context socios may only be correctly translated as “partners” when referring to socios in sociedades comanditarias por acciones. As underscored above, the socios of Spanish corporations are more appropriately “shareholders,” while socios of Spanish limited liability companies may be termed “members.” Unfortunately, in the translation of this law all references to the socios of sociedades limitadas have been rendered as “partners” (See, for example, the reference in Article 331 to “limited liability company partners.”) As indicated above, in this context “members” would be the appropriate term. And “members” would likewise be an appropriate generic rendering when referring collectively to socios in all three of the business entities governed under the Corporate Enterprises Act.

In summary, in addition to often referring informally to a “business colleague (or) partner,” socio may denote a “partner” in any of the three types of Spanish partnership, a “shareholder” in a corporation or a “member” of a limited liability company. Thus the correct translation of the term will depend on the type of business entity to which the socio belongs.

* http://www.mjusticia.gob.es/cs/Satellite/Portal/es/servicios-ciudadano/documentacion-publicaciones/publicaciones/traducciones-derecho-espanol

 

Español jurídico: denuncia; querella

CRIMINAL L

In Spain, a denuncia is the report of a crime to the police, a prosecutor or a judge. The alleged offense is then investigated and, if found to have merit, prosecuted. But once a denuncia is made, it is out of the hands of the informant who reported the crime.

In contrast, in a querella the person reporting the crime becomes a party to the proceedings. This is often the public prosecutor, in which case this is known as a querella del Ministerio Fiscal (“criminal complaint filed by the Public Prosecution Service”). But in contrast to Anglo-American criminal procedure, in Spain the victim or, at times, even an ordinary citizen may report a crime and indicate that he intends to enter an appearance as a party to the criminal proceedings, and his lawyer then will prosecute the case alongside the public prosecutor (fiscal).

In that regard, in addition to the powers of the public prosecutor to prosecute criminal offenses on behalf of the state, in Spain the victim or any other private citizen may enter an appearance (personarse) in criminal proceedings in what amounts to a “private prosecution” that is practically unknown or in disuse in Anglo-American jurisdictions. In this context “acusación (or) acusador particular” generally denotes the victim of a crime (or his representative) who files a private criminal complaint, entering an appearance in a criminal proceeding as a private prosecutor. Moreover, persons other than the victim may also enter an appearance in criminal proceedings as private prosecutors if they believe that they have an interest to defend in the matter. In that regard acusación (or) acusador popular denotes a private individual or an association of citizens who file a querella and post a bond (fianza) in order to be admitted as a party to the prosecution of a criminal case. And acusación (or) acusador privado refers to an individual seeking redress for a private offense (delito privado) that may only be prosecuted by the victim and in which the public prosecutor does not intervene.

In summary, denuncia is a “crime report” or the “report of a crime to the police (or other authority),” while in the cases initiated by private individuals querella may perhaps be described as a “private criminal prosecution.” For more on this peculiar Spanish system of allowing private individuals to participate as parties to criminal prosecutions see:

Julio Pérez Gil. “Private Interests Seeking Punishment: Prosecution Brought by Private Individuals and Groups in Spain.” Law & Policy, Volume 25 Issue 2 (April, 2003), pp. 151-172.

Legal Meanings of “book”

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.

book; booking; to book

References to “books” in legal contexts often concern some aspect of accounting (contabilidad). For example, “accounting books” are obviously libros de contabilidad, while “book value” is valor en libros or valor contable. In that regard, “bookkeeping” (literally, llevanza de libros) is a common expression for the recording of accounting information, and “to keep the books” may be expressed as llevar la contabilidad. Thus, a person who keeps accounting records may be referred to as a “bookkeeper,” while the expression “double-entry bookkeeping” (or “double-entry accounting”) refers to the commonly accepted método de contabilidad de partida doble. In that regard, in this context the colloquial expression “to cook the books,” refers to falsifying financial information and is often expressed in Spanish as maquillar las cifras.

In other respects, in the context of securities law “book-entry securities” are valores representados mediante anotaciones en cuenta, and the dematerialized (uncertificated) “book-entry system” is known as sistema de anotaciones en cuenta. Thus Mercado de Deuda Pública en Anotaciones is a reference to Spain’s Government Book-entry Investment Securities Market.

And in criminal law contexts “booking” refers to entry on the police register of information concerning a criminal suspect who is being placed under arrest (fichar al detenido). The booking procedure of an arrestee (procedimiento de fichaje del detenido) typically includes taking his photograph and fingerprints (tomarle la fotografía y las huellas). Thus the expression “he was booked at the police station” means le ficharon en comisaría.

Terminology Sources: Accounting Standards

International Accounting Standards (IAS)

International Financial Reporting Standards (IFRS)

For translators who often have to translate texts dealing with International Accounting Standards (IAS) or the International Financial Reporting Standards (IFRS) into Spanish (or vice versa), here are the full English texts side-by-side with their Spanish counterparts, Normas Internacionales de Contabilidad (NIC) and Normas Internacionales de Información Financiera (NIIF) (courtesy of the Official Journal of the EU):

http://eur-lex.europa.eu/legal-content/EN-ES/TXT/?uri=CELEX:32008R1126&fromTab=ALL&from=EN