Month: September 2016

Legal Meaning of asistir

rebeccajowers Common words with uncommon legal meanings
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.

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

rebeccajowers Mistranslations?
CRIMINAL L

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 Spanish 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 in this context. Thus, in this case we may be 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

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

 

“Personification” in Legal Spanish

rebeccajowers Español jurídico

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 introduced 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

rebeccajowers Multiple Meanings
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.

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

rebeccajowers Multiple Meanings
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.

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

rebeccajowers Latinismos
Latin for Lawyers
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)

rebeccajowers Capsule vocabularies

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” 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.

Vocabulary Medidas Cautelares 1

 

medidas cautelares (provisional remedies)

When dealing with civil proceedings, the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil—LEC) is a fundamental source of terminology for translators and interpreters. Several terms and expressions that may initially puzzle those new to this field have been discussed here in previous posts in which I offer possible English translations for each. These include carga de la prueba; the distinction between providencias, autos and sentencias; or the difference between resolución definitiva and resolución firme. This post examines one of the sections of the LEC that merits particular attention: medidas cautelares, known in English as “provisional remedies,” but also as “interim (or) interlocutory remedies,” “interim relief” or, if the relief granted is an injunction (orden de hacer o no hacer), “injunctive relief.” Here I’m providing some of the vocabulary concerning procesos cautelares (“provisional remedy proceedings”). A second post looks at the different types of provisional remedies available under the LEC and how they may be expressed in English. (The source of this terminology is my Léxico temático de terminología temática español-inglés.)

  •  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 cautelar—decision/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 explained here.

Read more: 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.

 

Multiple Meanings of “Award”

rebeccajowers Multiple Meanings
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.

award; to award

In nonlegal contexts “award” is often a synonym for “prize,” as in “The Academy Awards” (los Óscar). “Award” has similar connotations in legal contexts as both a noun and a verb, but how the term is best translated may vary in different areas of law. In the context of arbitration, the decision of an arbitrator is known as an “arbitral (or) arbitration award,” which in Spanish is laudo arbitral. “To award a contract” is adjudicar un contrato, and “to award custody” (of children in a divorce proceeding, for example) is atribuir la guarda y custodia.

In civil procedure “award” may describe a judge’s decision granting a plaintiff compensation for damages (“award of damages”) or an order that the losing party bear the successful party’s costs (“award of costs”). It should be noted that in Spanish this is generally expressed from the perspective of the losing party who is ordered to pay damages (condenado al pago de daños y perjuicios) or ordered to pay costs (condenado en costas). Thus “plaintiff was awarded damages” would be expressed in Spanish as el demandado fue condenado al pago de daños y perjuicios (literally, “defendant was ordered to pay damages”). Likewise, “plaintiff was awarded costs” would be rendered in Spanish as el demandado fue condenado en costas (literally, “defendant was ordered to pay costs”). In that regard “award of costs” is most often expressed as imposición de costas or condena en costas, denoting a judge’s order assessing costs against the losing party.

False Friends: secreto ; secret

rebeccajowers False Friends
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.

secreto; secret

Secreto and “secret” are cognates when referring, for example, to secretos industriales (“trade secrets”). But in many legal contexts the terms may be considered “false friends.” The expression derecho al secreto de las comunicaciones refers to the constitutional “right of privacy” with regard to information exchanged by phone, through the mail or electronically. And in the context of court procedure, secreto is perhaps best translated as “privileged.” In that sense secreto profesional is not “professional secrecy,” as the expression has sometimes been rendered, but rather denotes the confidentiality required in certain privileged relationships. Common examples include secreto profesional del abogado or secreto profesional entre abogado y defendido (“lawyer-client privilege;” “attorney-client privilege”); secreto profesional médico (“doctor-patient privilege;” “physician-patient privilege”) and secreto profesional periodístico (or) de los periodistas (“journalist’s privilege;” “reporter’s privilege” or “newsman’s privilege”). The reference to testigos con deber de guardar secreto denotes “witnesses with testimonial privilege.” Indeed, in certain cases a husband or wife may decline to testify against a spouse, claiming “marital privilege” or “marital communications privilege” and, in general, spouses share a “privilege of confidential marital communications.” And secreto de confesión denotes “priest-penitent privilege” or “clergyman-penitent privilege.” Thus, in general, obligación de guardar secreto is not an “obligation to keep secrets,” but the “obligation to maintain confidentiality,” and documentos secretos are simply “confidential (or) classified documents.”

In criminal procedure, secreto del sumario (or secreto sumarial) refers to the “confidentiality of criminal investigations” and to the fact such proceedings are generally made known only to persons involved in the inquiry. In a more restrictive sense, a judge may initially declare a criminal inquiry confidential (declarar el secreto del sumario), prohibiting suspects and witnesses from publicly revealing details of the investigation. When the investigation is subsequently opened to other parties, this is known as levantamiento del secreto del sumario. And in other respects, the criminal offense of violación de secretos denotes “unlawful access to privileged (or) confidential information.”

 

 

Varieties of Legal English in the UK

rebeccajowers Legal English in the US and the UK

uk parliament-2

My students of Legal English often ask me why I label certain British legal terms as “UK” and others as “E&W” (England and Wales). It is important to note that the legal terminology of England and Wales often differs from the terminology of the rest of the UK, especially Scotland, but also sometimes Northern Ireland. England and Wales share the same law, modern Scots law is often described as “hybrid” (having its roots in civil law), and Northern Ireland likewise has its own legal system.

Moreover, the laws enacted by the UK Parliament in London are not necessarily applicable throughout the whole United Kingdom. When accessing UK legislation (www.legislation.gov.uk), one of the “Advanced Features” available under the “Content” tab  says “show geographical extent.” If we check “show geographical extent” for the Companies Act 2006, a small purple banner appears with the message “E+W+S+N.I.,” indicating that this piece of legislation is applicable throughout the UK. If we do the same for the Civil Procedure Act 1997, the little purple banner says “E+W,” since that law is only applicable in England and Wales.

As examples of just how different English and Scottish legal terms can be, in civil procedure the English “claimant” (demandante—“plaintiff” in the US) is the “pursuer” in Scotland, while the defendant (demandado) is the “defender.” Criminal cases that are prosecuted in England and Wales by a “Crown Prosecutor” (fiscal) are prosecuted in Scotland by a “Procurator Fiscal.” And the English crimes of “manslaughter” (homicidio involuntario), “burglary” (robo con fuerza en las cosas) and “arson” (incendio provocado) are known respectively as “culpable homicide,” “house-breaking” and “fire-raising” north of the Anglo-Scottish border.