Multiple Meanings of “undertaking”

Legal Terms with Multiple Meanings

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

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.

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

uk parliament-2

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.

Multiple Meanings of competencia

Legal Terms with Multiple Meanings

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, the expressions incompetencia and falta de competencia denote “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. But, ¡ojo! in this context juez incompetente refers to a judge (or court) who lacks jurisdiction over a given matter and obviously cannot be rendered as “incompetent.” Indeed, suggesting that a judge is “incompetent” might warrant a citation for contempt of court (desacato al tribunal).

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”).

 

 

False Friends: When is a billón not a billion?

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.

billón ; billion

Although these are not strictly legal terms, confusing billón and “billion” may give rise to mistakes in legal translation. As defined in the DLE, in Spain billón is a million millions (i.e., un millón de millones que se expresa por la unidad seguido de 12 ceros). In the US, however, a “billion” is a thousand millions (un millar de millones, o la unidad seguido por 9 ceros). In the UK, prior to 1974, a billion was traditionally defined as a million millions, in line with Spanish usage, and the US billion (a thousand millions) was called a “milliard.” In 1974 Prime Minister Harold Wilson announced that, in conformity with international custom, UK government statistics would adopt the “billion = thousand millions” definition, which is now prevalent in official documents and in the British press. Nevertheless, to avoid confusion translators should be aware that some older UK or other English-language sources may use the term “billion” with the meaning of “a million millions.” Moreover, it is worth noting that the EU’s Interinstitucional Style Guide for publications in English indicates that “‘billion’ is used to designate a thousand million (and not a million million) and ‘trillion’ a million million.” (http://publications.europa.eu/code/en/en-4100500en.htm)

Read more here:

http://www.parliament.uk/briefing-papers/SN04440.pdf.

http://www.fundeu.es/recomendacion/elbillion-inglesno-equivaleal-billon-espanol-858/

False Friends: Pay me but don’t take retribution!

Oh, no! False Friends

retribución; retribution

These terms are true false cognates. Retribución denotes recompensa o pago de algo. In contrast, “retribution” only rarely has the meaning of recompense or reward, and is usually associated with punishment (castigo) or taking vengeance (venganza) for wrongdoing, often being used in that sense in criminal law contexts (“retributive justice,” the “retributive theory of punishment,” etc.).

Thus in corporate law contexts, retribución de los administradores (or) consejeros refers to “directors’ remuneration (or) compensation,”* rather than “directors’ retribution,” as the expression has sometimes been mistranslated in Spanish sources. In that regard, the boards of directors of large Spanish corporations often have a Comité de Nombramientos y Retribuciones (“Appointments and Remuneration (or) Compensation Committee”). And in this context, retribución en especie refers to “non-cash compensation” or “compensation in kind,” while retribución por horas extraordinarias is “overtime pay.” Other examples include política de retribuciones (“remuneration policy;” “compensation policy”); paquete de retribuciones (“pay package”) and retribución por vacaciones (“vacation/holiday pay”).

*“Compensation” would perhaps be the preferred term in the US, while “remuneration” is more often used in the UK.

 

Capsule Vocabularies: medidas cautelares (2)

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 2

A previous post featured the basic vocabulary of Spanish provisional remedies proceedings and the requisites for granting provisional remedies. Here we look at some of the specific remedies available under the Civil Procedure Act (Ley de enjuiciamiento civil), providing a brief description where warranted and a possible English translation for each. (The source of this terminology is my Léxico temático de terminología temática español-inglés.)

  • medidas cautelaresprovisional remedies; interim/interlocutory remedies; interim relief (or) injunctive relief (if the relief granted is an injunction—orden de hacer o no hacer)
  • embargo preventivo de bienes—pretrial/prejudgment attachment of assets
  • auto de embargo preventivo—writ of attachment; pretrial/prejudgment attachment order
  • anotación preventiva de demanda—notice of lis pendens; notice of pendency of action (entered on public registers)
  • orden de hacer o no hacer—mandatory or prohibitory injunction
  • orden de cesación/abstención/prohibición provisional—temporary restraining order; preliminary injunction; cease and desist order
  • intervención judicial de bienes productivos—placement of productive assets under judicial supervision (to monitor defendant’s management decisions)
  • interventor judicial—court-appointed supervisor (of defendant’s affairs)
  • administración judicial de bienes productivos—placement of productive assets under judicial receivership (appointment of a receiver to manage defendant’s assets)
  • administrador judicial—court-appointed receiver/manager (of defendant’s assets)
  • depósito de cosa mueble—consignment of personal property
  • depósito de las cantidades reclamadas—deposit into court of amounts claimed
  • formación de inventario de bienes—taking an inventory of defendant’s assets

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.

 

 

Legal Meaning of asistir

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

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

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.”