Legal Meaning of asistir

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.

asistir

The common term asistir has a meaning in legal language that is fairly unknown to non-lawyers. In the rather formal expression “le asiste (a Ud.) el derecho,” asistir cannot be translated literally as “assist,” but rather has the peculiar meaning of disponer de un derecho. Thus le asiste el derecho suggests that “you have a legal right.” When the preposition “a” or “de” is added, the expression means “you have a right to” or “you are entitled to.” A few examples that I have come across in my translation work include le asiste el derecho a examinar el expediente (“you have the right to examine the case file”); le asiste el derecho a alegar por escrito lo que en su defensa estime conveniente (“you have the right to submit written allegations in your defense”) and le asiste el derecho de reclamación ante la Junta Arbitral de Consumo (“you have the right to file a complaint with the Consumer Arbitration Board”).

Mistranslations(?): prevaricación

“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.

Just what is prevaricación?

News from the Spanish press: El juez cita al secretario de Estado para responder por cinco delitos, entre ellos prevaricación… and El partido interpuso ante el alto tribunal una querella por prevaricación contra el juez que envió a los dos artistas a prisión preventiva sin fianza. But just what is prevaricación and, more importantly, how can we translate it?

 Prevaricación is perhaps one of the most misunderstood (and mistranslated) terms of Spanish criminal law.* It is often translated literally as “prevarication,” a term defined in Black’s Law Dictionary (8th ed.) as “the act or an instance of lying or avoiding the truth.” Other renderings that I have seen include:

  • breach of public duties
  • deliberate neglect of duty
  • betrayal of trust
  • criminal breach of trust
  • abuse of authority; abuse of office; abuse of process
  • irregular dealings (and)
  • malfeasance

But these translations aren’t really accurate. Indeed, prevaricación has a very specific meaning in Spanish criminal law, ** referring to a judge or civil servant who issues an arbitrary decision with the knowledge that it is unfair. The Criminal Code distinguishes two types of prevaricación. Prevaricación committed by public officials or civil servants (autoridad o funcionario público), often called prevaricación administrativa, is defined as dictar resolución arbitraria en asunto administrativo a sabiendas de su injusticia (Art. 404). Prevaricación committed by judges (prevaricación judicial) is similarly defined as dictar a sabiendas resolución o sentencia injusta (Art. 446).

So as used in Spanish criminal law, there is unfortunately no short, snappy rendering for prevaricación that would fit nicely in a translation, and none of those listed above expresses the meaning of the term. Thus, in this case we are obliged to render prevaricación with a “definitional translation” such as “knowingly issuing an unfair decision” or devise a similar expression that reflects its true meaning.

Read more here: http://guiasjuridicas.wolterskluwer.es/home/EX0000013706/20080708/Prevaricacion

*For possible English translations of other difficult criminal law terms see previous posts on:

**The meaning of prevaricación may, of course, be different in other Spanish-speaking jurisdictions.

 

Personification in Legal Spanish

In Spanish certain legal concepts are customarily personified and, although not a mistranslation per se, when rendered literally such expressions may sound strange to native English speakers. One of the most common examples is the personification of the shareholders meeting in Spanish corporate documents. When reflecting decisions taken at a shareholders meeting, the minutes will, for example, typically indicate that the Junta General acordó un aumento de capital (or) ratificó el nombramiento de los consejeros. Rather than “the shareholders meeting approved (or) ratified…,” in English this would more likely be expressed as “The shareholders approved a capital increase” (or) “ratified the appointment of directors at the annual meeting.”

Likewise, in the context of parliamentary law, el constituyente often denotes a “constitutional convention (or) congress” (asamblea constituyente), rather than an individual member of that body. Thus, el constituyente de 1812 refers collectively to the assembly (Cortes de Cádiz) that drafted the Constitución de 1812, and el constituyente de 1978 denotes jointly the Spanish Parliament (Cortes Generales) and the people of Spain (in referendum) who approved Spain’s present Constitución de 1978. In this context, in addition to “constitutional assembly (or) convention” el constituyente might also be translated as “the drafters (or) authors of the Constitution.”

Similarly, the parliament, legislature or legislative branch of government is often personified as “el legislador,” which would sound strange if rendered literally as “the legislator.” Thus, medidas introducidas por el legislador refers to “measures adopted by parliament (or) the legislature,” and la reforma llevada a cabo por el legislador refers to a “legislative reform,” while the expression el legislador estatal distinguishes the central Spanish parliament (Cortes Generales) from the legislative assemblies of the Autonomous Communities, which are often referred to as “el legislador autónomico.” In addition, references to el legislador demócratico denote the present Spanish parliament under the post-Franco Constitution of 1978. In this and similar contexts, in addition to “the Parliament” or “the Legislature,” el legislador may also be rendered simply as “lawmakers.”

Multiple Meanings of días hábiles; días inhábiles

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.

días hábiles; días inhábiles

The appropriate translation of días hábiles or días inhábiles always depends on the context in which the expression is used. If días hábiles actually refers to días naturales (that is, if all days of the week are días hábiles for a particular activity), the expression must be translated as “calendar days.” If días hábiles refers to días laborables, they are “work days” or “working days” (días hábiles laborales). Días hábiles comerciales are, of course, “business days,” while días hábiles bancarios are “banking days.” When referring to the activities of securities markets, días hábiles bursatiles are “trading days.” And the days in which courts are in session (días hábiles judiciales) are “court days,” (or, perhaps less commonly, “judicial days” or “juridical days”).

The opposite (días inhábiles) for the above would be (in order): “non-working days” or “holidays;” “non-business days;” “non-banking days” (or “bank holidays,” particularly in the UK); “non-trading days” and “court holidays,” “court recess” or “non-court days.”

Multiple Meanings of condena

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.

condena; condenar; condenado

In the terminology of criminal procedure condena has two distinct meanings, denoting a criminal “conviction” (a judicial finding of guilt) or a “sentence” (the punishment imposed on a convicted criminal defendant): fue condenado por narcotráfico (“he was convicted of drug trafficking”); le condenaron a seis años de prisión (“he was sentenced to six years in prison”). Thus, in this context the expressions sentencia de condena and sentencia condenatoria refer to a “conviction” or a “finding (or) judgment of guilty.”

But condena is likewise a civil procedure term that does not refer to a “judgment of guilty” or a “criminal sentence” as it does in criminal procedure, but rather denotes a “judgment for the plaintiff.” Thus, in civil procedure an expression such as se condenó al demandado means “judgment was rendered for the plaintiff” and not “the accused was convicted,” as expressions of this nature have sometimes been mistranslated.

In the classification of civil judgments, in contrast to sentencia declaratoria (a declaratory judgment with no award of relief), sentencia de condena or sentencia condenatoria denotes a judgment awarding relief to the plaintiff (demandante) in a civil action, ordering (condenando) the defendant (demandado) to pay a sum of money or to do or refrain from doing something stipulated in the judgment. Thus, in civil procedure contexts a sentencia de condena or sentencia condenatoria is generically a “judgment awarding relief” or, more specifically, a “judgment for the plaintiff (called “claimant” in England and Wales). In that regard, condena dineraria or condena al pago de cantidad de dinero is a “money judgment,” while condena no dineraria denotes a “non-money judgment.” Condena de hacer is a judgment ordering the defendant to perform a given act (to restore or transfer certain property to the plaintiff, for example), and may be rendered as “permanent mandatory injunction” or perhaps described as a “judgment ordering (or) compelling performance.” Conversely, a condena de no hacer orders the defendant to refrain from an action indicated in the judgment, constituting a “permanent prohibitory injunction” or, rendered descriptively, a “judgment ordering the defendant to refrain from X” or “judgment restraining defendant from X.”

Condena is likewise used in expressions such as condena al pago de daños y perjuicios (“order to pay damages” or “damages order”) and condena en costas (“order to pay costs” or “costs order”). Perhaps it should be underscored that in Spanish the losing party is “ordered” (condenado) to pay damages or costs, while in English that same idea is often expressed from the perspective of the prevailing or successful party, who is “awarded” damages or costs.* Thus, el demandado fue condenado al pago de daños y perjuicios means that the “defendant was ordered to pay damages,” but this is often expressed as “plaintiff was awarded damages.” Likewise, el demandado fue condenado en costas indicates that the “defendant was ordered to pay (the plaintiff’s) costs,” but this is usually expressed as “plaintiff was awarded costs.” And in a sentencia sin condena en costas the judge makes “no costs order” (the losing party is not ordered to pay costs), which is often expressed in English as “no award of costs” (the prevailing party is not awarded costs).

In line with the above, in criminal procedure condenado denotes a person who has been convicted of a criminal offense (a “convicted criminal defendant”), or one who has been sentenced in a criminal proceeding. But the meaning of condenado is quite different in the context of civil procedure in which the term refers to the “losing party” in a civil action in which a “judgment for the plaintiff” (sentencia condenatoria) has been rendered. In that regard, the condenado in a “money judgment” (condena dineraria) is a “judgment debtor,” while the expressions el condenado a pagar daños y perjuicios and el condenado en costas refer respectively to the losing party who has been “ordered to pay damages” and “ordered to pay costs.”

*See the September 19, 2016 post on “award.”

 

Latinismos: fumus boni iuris; periculum in mora

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 Latin expressions 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 generally used 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 believe legal translators will encounter most often.

fumus boni iuris ; periculum in mora

These two Latin expressions are not used in legal English, but they are nevertheless fundamental concepts in civil procedure in Spain and in many other Spanish-speaking jurisdictions. Indeed, these are the two requisites that must be present in order for a judge to grant a plaintiff provisional remedies (medidas cautelares)* in a civil proceeding. In that regard, the plaintiff must first demonstrate fumus boni iuris or, in Spanish, aparencia de buen derecho. It must be apparent that the plaintiff has a legal position warranting interim relief (situación jurídica cautelable) and that he has a prima facie likelihood of success on the merits. Secondly, the plaintiff must demonstrate periculum in mora or peligro por la mora procesal. Often translated literally as “danger in delay,” the periculum in mora requisite ultimately requires the plaintiff to demonstrate that there is a real risk of irreparable injury to him due to delay in the resolution of the proceedings.

*In addition to “provisional remedies,” medidas cautelares can be rendered in English as “interim/interlocutory remedies,” “interim relief” and, if the relief ordered is an injunction (orden de hacer o no hacer), “injunctive relief.”

Capsule Vocabularies: medidas cautelares (1)

ES-EN legal translators (and lawyers and professors) often require a minimum basic vocabulary in a specific area of law, something that they will be hard pressed to find searching word-by-word in a dictionary. (In this case, the “problem” with dictionaries is that they are in alphabetical order.) Blog entries labeled “Capsule Vocabularies” will feature some of the basic terminology lists developed for use by my students of legal English that I hope may also be of interest to translator and interpreter colleagues and other legal professionals.

medidas cautelares (provisional remedies)

Last week legal translator Alicia Martorell published an excellent article on the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil—LEC) as a fundamental source of terminology for translators and interpreters.* She mentions many terms and expressions that may initially puzzle translators who are new to this field, such as carga de la prueba; the distinction between providencias, autos and sentencias; or the difference between resolución definitiva and resolución firme. I’ve examined all of those terms in previous posts, offering possible English translations for each.** Today I would like to look at one of the sections of the LEC that Martorell underscores merits particular attention: medidas cautelares, known in English as “provisional remedies,” but also “interim/interlocutory remedies,” “interim relief” or, if the relief granted is an injunction (orden de hacer o no hacer), “injunctive relief.” I’m providing below some of the vocabulary of procesos cautelares (“provisional remedy proceedings”) with possible renderings in English. In a second post, I will look at the different types of provisional remedies available under the LEC and how they may be expressed in English.

  •  demanda cautelar—motion for provisional remedies; application for interim relief
  • solicitar medidas cautelares—to apply for provisional remedies/interim relief/an injunction
  • solicitud de medidas cautelares a instancia de parte—ex parte application/motion for provisional remedies
  • oposición a la medida cautelar—(defendant’s) objection to the grant of provisional remedies
  • caución sustitutoria—substitute bond (bond posted by the defendant in lieu of a provisional remedy)
  • adoptar medidas cautelares—to grant/order provisional remedies/interim relief; to grant an injunction
  • resolución cautelardecision/ruling in provisional remedy proceedings
  • auto que acuerda medidas cautelares—order granting provisional remedies/interim relief/an injunction
  • auto que deniega las medidas cautelares—order denying the motion (or) application for provisional remedies/interim relief/an injunction
  • alzamiento de medidas cautelares—cancellation/revocation of provisional remedies; lifting an injunction

The requisites for granting medidas cautelares are fumus boni iuris and periculum in mora, two important latinismos that I will look at in a post tomorrow.

Read more here: Víctor Moreno Catena and Valentín Cortés Domínguez. Derecho Procesal Civil, Parte General. Valencia: Tirant lo Blanch, 2015, Lección 29: “Las medidas cautelares”, pp. 419-439.

* http://www.leglosa.com/blog/vocabulario-derecho-procesal-traductor-juridico

**carga de la prueba: https://rebeccajowers.com/2016/08/30/es-en-legal-translation-1/

sentencia definitiva/firme: https://rebeccajowers.com/2016/07/06/confusing-terms-10/

providencia; auto; sentencia: https://rebeccajowers.com/2016/07/07/espanol-juridico-7/