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

Is this really a mistranslation_
“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)

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