Multiple Meanings of desistimiento

Although desistimiento generically denotes “withdrawal” or “abandonment,” the appropriate translation of the term depends on the area of legal practice in which it is used. In criminal law, in the context of defining “criminal attempt” (tentativa de delito), desistimiento de la tentativa refers to a criminal perpetrator’s voluntary abandonment of or withdrawal from a crime before it is consummated (desistimiento voluntario antes de consumar el delito). In English this is often formally called “renunciation of criminal purpose.”

In contract law desistimiento de contrato likewise denotes the voluntary, often unilateral withdrawal from a contract (desistimiento unilateral), and in English this may be expressed as a “unilateral cancellation (or) termination of contract.” Likewise, the right to withdraw from or to unilaterally terminate a contract and cancel a purchase (called derecho de desistimiento) is a feature of Spanish consumer protection legislation (Real Decreto Legislativo 1/2007, por el que se aprueba el texto refundido de la Ley General para la defensa de los consumidores y usuarios).

In other contexts, desistimiento (del demandante) is likewise used in civil procedure to denote the plaintiff’s abandonment of a proceeding before a trial of the issues, which does not preclude future prosecution of the claim (declaración unilateral del actor por la que tiene por abandonado el proceso, sin que ello suponga renuncia a la acción). In many US jurisdictions this “abandonment of suit” is known as a “voluntary dismissal” of the action or claim.

For the difference between desistimiento and renuncia in civil proceedings see: https://rebeccajowers.com/2016/07/26/espanol-juridico-8/

Mistranslations(?): Why Derecho mercantil is “Business Law”

“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.

One of my students recently asked me why I translate Derecho mercantil as “Business Law,” and why can’t the term be rendered literally as “Mercantile Law” or as “Commercial Law.” There is certainly no official translation for Derecho mercantil, and translations between different legal systems are never 100% equivalents, but in this case I believe “Business Law” is simply closer to the meaning of Derecho mercantil than the other two options.

In its strictest sense, “Mercantile Law” is often understood to refer to the “law merchant” or lex mercatoria, the system of customary law widely adopted in Europe during the Middle Ages.

“Commercial Law” is a narrower concept than Derecho mercantil. In England and Wales a course on commercial law may sometimes be limited to the study of the sale of goods (compraventa de mercancías), international sales (compraventa internacional), the law of agency (Derecho de agencia) and consumer credit (crédito al consumo). Likewise, in the US “commercial law” is often understood as being limited to those areas of law governed by the Uniform Commercial Code, including the sale of goods (compraventa de mercancías), negotiable instruments (títulos valores), bank deposits (depósitos bancarios) and secured transactions (operaciones garantizadas), among others.

And, finally, a quick look at the table of contents of any standard Spanish law school textbook on Derecho mercantil makes it clear that it is much broader than “commercial law,” and shares many of the disciplines studied in the US in business law courses. These include:

  • Derecho societario (corporate law or, in its broader meaning, law of business entities)
  • Contabilidad mercantil (business accounting)
  • Propiedad intelectual e industrial (intellectual property)
  • Derecho de la competencia (competition/anti-trust law)
  • Derecho de la competencia desleal (unfair competition law)
  • Derecho de la publicidad (advertising law)
  • Contratos mercantiles (commercial contracts)
  • Títulos valores (negotiable instruments)
  • Derecho del mercado de valores (securities markets law)
  • Derecho bancario (banking law)
  • Derecho de los seguros privados (insurance law)
  • Derecho concursal (insolvency law)

Español jurídico: Difference between emplazamiento and citación

A translator colleague recently asked me what the difference is between emplazamiento and citación, given that both generally refer to a “summons”. Well the answer is right there in the terms themselves. In an emplazamiento the recipient is given a term (plazo) in which to respond to the content of the summons. That’s why an emplazamiento is the document served with a complaint (escrito de demanda), since the defendant has a legally-established term in which to file an answer (contestar a la demanda). In contrast, citación is generally a summons to appear in court (a “cita”), specifying the time and day that the recipient must comply. But unless a translation requires distinguishing between the two, they are both a “summons.”

Simple definitions of emplazamiento and citación appear in the Wolters Kluwer legal guides:

El emplazamiento junto con la citación son dos actos de comunicación de vital importancia, ya que son los actos de comunicación a través de los cuales el demandado va a poder entrar en el proceso, o bien personarse ante otra instancia. A diferencia de la citación en la que al demandado se le cita para que comparezca en un día concreto al juicio,… en el emplazamiento se le concede al demandado un plazo para que pueda personarse y contestar a la demanda presentada contra él.

Read more here: http://guiasjuridicas.wolterskluwer.es/home/EX0000012547/20080708/Emplazamiento

 

Multiple Meanings of “undertaking”

undertaking; to undertake

In the language of contracts “undertaking” denotes a “promise” or “pledge,” and is most often expressed in Spanish as compromiso. In its verb form, “to undertake (to do something)” is comprometerse (a hacer algo). Thus, for example, in an employment contract there may be a “confidentiality undertaking” (compromiso [or] acuerdo de confidencialidad) in which “Employee undertakes not to disclose Employer’s confidential information” (el Empleado se compromete a no divulgar la información confidencial del Empleador).

But in the language of EU competition law “undertaking” has a very different meaning, being a generic term for “business entity” that encompasses all types of enterprises without reference to any specific corporate form. In this context “undertaking” refers to any entity engaged in economic activity that offers goods or services in a given market, regardless of its legal status. In Spanish this generic term “undertaking” is rendered simply as empresa. Thus the EU competition rules set forth in Article 101 (3) of the Treaty on the Functioning of the European Union (Tratado de Funcionamiento de la Unión Europea) prohibit activities in restraint of trade including “all agreements between undertakings, decisions by associations of undertakings and concerted practices.” In the Spanish version of the Treaty this is expressed as todos los acuerdos entre empresas, las decisiones de asociaciones de empresas y las practicas concertadas.”

And, ¡ojo! Although in this context “undertaking” is empresa, in modern usage “undertaker” cannot be rendered as empresario, as the term has sometimes been mistranslated. Indeed, since the late 1600s (according to the Online Etymology Dictionary), the term “undertaker” denotes “a person whose profession is the preparation of the dead for burial or cremation and the management of funerals; funeral director” (Collins English Dictionary). Thus, “undertaker” may be more properly described as director de servicios funerarios (or with a similar expression) and is definitely not a generic term for empresario.

False Friends: When declaración is not a declaration

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.

declaración ; declaration

There are many legal contexts in which declaración cannot be appropriately translated as “declaration.” When denoting the official confirmation of a status or event, declaración may often be rendered as “certification,” as in declaración de fallecimiento (“certification of death”) or declaración de incapacidad laboral (“certification of occupational disability”). In tax law (Derecho tributario), declaración de la renta (or declaración tributaria) is an “income tax return,” and presentar la declaración de la renta is “to file an income tax return.” Thus, for example, declaración conjunta is a “joint tax return” filed by both spouses, while declaración complementaria is an “amended return.” In the context of judicial decisions, declaración judicial is generically a “judicial ruling,” denoting a court’s adjudication of a given matter, as in declaración judicial de insolvencia (“adjudication of insolvency”) or declaración judicial de incapacidad (“adjudication of incompetence [or] incapacity”). In the Spanish Civil Procedure Act (Ley del Enjuiciamiento Civil), declaración often refers to “testimony,” as in declaración testifical (“witness testimony”), declaración de partes colitigantes (“co-litigant testimony”) or declaración de tercero (“third-party testimony”). In this context prestar declaración is “to testify,” while negativa a declarar is “refusal to testify.” And, finally, in the context of criminal procedure (Derecho procesal penal), declararse culpable has the specific meaning of “to plead guilty” as in se declaró culpable de dos de los cargos (“he pleaded guilty to two of the charges”).

How to Read an Act of the UK Parliament

Translators and legal professionals often have to deal with original sources and searching for a quote from UK legislation may at first be confusing to the uninitiated. The text of all acts of Parliament are available from two main sources, the “Official home of UK legislation, revised and as enacted 1267-present” at www.legislation.gov.uk, and the British and Irish Legal Information Institute (BAILII) at www.bailli.org . As an example, let’s look at the primary source of UK company law, the Companies Act 2006 (http://www.legislation.gov.uk/ukpga/2006/46/introduction) to see how it’s organized.

Under the Crown Seal the first thing that appears is the law’s short title, “Companies Act 2006” with its official citation underneath. Here “2006 CHAPTER 46” indicates that this was the 46th act passed by Parliament in 2006. There follows the act’s long title, which is really a description of the purpose of the law:

 An Act to reform company law and restate the greater part of the enactments relating to companies; to make other provision relating to companies and other forms of business organisation; to make provision about directors’ disqualification, business names, auditors and actuaries; to amend Part 9 of the Enterprise Act 2002; and for connected purposes.

The date on the right, underneath the long title is the date of enactment when the act went into force. To the left you can check the geographical extent of the law.* Then comes the enacting formula:

 BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows…

 “Lords Spiritual and Temporal” is obviously a reference to the House of Lords, and the formula basically translates as Queda promulgada por su majestad la Reina la siguiente ley, con la aprobación y la autoridad de la Cámara de los Lores y la Cámara de los Comunes reunidas en el Parlamento. (Spanish laws are also enacted by royal assent –sanción real– in similar terms: Felipe VI, Rey de España, a todos los que la presente vieren y entendieren, Sabed: Que las Cortes Generales han aprobado y Yo vengo en sancionar la siguiente Ley). Older pieces of UK legislation then have a preamble with its “whereas clauses” describing the purpose of the act.

The main body of an act of Parliament is divided into numbered sections with headings summarizing their content. Subsections of sections have numbers in parentheses (called “brackets” in BrE), i.e., (1), (2), etc. Subsections are followed by paragraphs marked (a), (b), etc. Paragraphs may also have subparagraphs designated by small-cap Roman numerals, (i), (ii), (iii), etc. And, finally, an act of Parliament is generally followed by a series of schedules containing definitions, explanations, detailed provisions, amendments and repeals.

 

*Not all acts of Parliament are applicable throughout the entire UK, as explained here: https://rebeccajowers.com/2016/09/15/varieties-of-legal-english-in-the-uk/

Multiple Meanings of competencia

Competencia can’t always be translated as “competence”

There are several legal contexts in which competencia does not mean “competence.” In the context of constitutional law and with respect to the legal system in general, competencia often has the meaning of “power,” as in competencia tributaria (“taxing powers,”) competencia legislativa (“legislative powers,”) or “competencia ejecutiva” (“executive powers” or “powers of the executive”). In that regard, an expression such as ámbito de competencias (or ámbito competencial) de las Comunidades Autónimas en materia sanitaria denotes the “scope of the Autonomous Communities’ powers in the healthcare sector.” Likewise, atribuir competencias is to “grant powers, while transferencia (or) traspaso de competencias (ejecutivas o legislativas) is “transfer of (executive or legislative) powers.”

In the context of procedural law, competencia often denotes “jurisdiction,” i.e., the power of a court (or other adjudicating body) to rule on given case. This is the meaning in expressions such as competencia por razón de la materia (“subject-matter jurisdiction”); competencia por razón de la persona (“personal jurisdiction” or “in personam jurisdiction) and competencia por razón de la cuantía del litigio (“jurisdiction based on the amount in controversy (or) the jurisdictional amount”). Competencia territorial is “territorial jurisdiction,” referring to the “forum” or “venue,” i.e., the court in which a case is heard. And competencia funcional (although often translated narrowly as “appellate jurisdiction”) actually determines which court has jurisdiction over each stage in a given proceeding, including the hearing of interlocutory motions, appeals and enforcement proceedings (incidentes, recursos y ejecución de sentencias). In addition, in this sense expressions such as conflicto de competencias, cuestión de competencia (as well as conflicto de jurisdicción) may perhaps be described generically as “jurisdictional disputes.”

In this context the adjective competente means “having jurisdiction.” This is the meaning in expressions such as tribunal competente (“court of competent jurisdiction”), tribunal competente en primera instancia (“court of original jurisdiction”), tribunal competente en última instancia (“court of last resort”) or tribunal competente en primera y única instancia (“court of first and last resort”).

In other respects, falta de competencia denotes “lack (or) want of jurisdiction:” se inadmitió el recurso por falta de competencia (“the appeal was deemed inadmissible for lack (or) want of jurisdiction”). And, when warranted, a judge may “decline jurisdiction,” which in Spanish is declararse incompetente.

In the context of “competition law” (Derecho de la competencia) competencia is logically rendered as “competition” rather than “competence.” This is true in a number of standard expressions including falseamiento de la competencia (“distortion of competition”); política de competencia (“competition policy”); competencia destructiva (“cut-throat competition”); competencia excesiva (“excessive competition”); competencia perfecta (“perfect competition”) or competencia desleal (“unfair competition”). And an expression such as practicas restrictivas de la competencia may often be rendered as “practices in restraint of trade.”

And finally, in the context of employment contracts cláusula de no competencia refers to a “non-competition clause,” likewise known as a pacto de no competencia (“covenant not to compete”).