What is alevosía?

Alevosía appears as one of the basic agravantes (“aggravating circumstances” that may increase criminal liability) in the penal codes of Spain and other Spanish-speaking jurisdictions. It has been translated variously as “treachery,” “perfidy” and “malice aforethought,” none of which really reflects the true meaning of the term. “Treachery” is defined in the Oxford Online Dictionary as “betrayal of trust” or “the quality of being deceptive,” while “perfidy” is the “state of being deceitful and untrustworthy.” “Malice aforethought” is a criminal law term denoting “the requisite mental state for common-law murder” (Black’s Law Dictionary, 7th ed.).

But do any of these three terms express the meaning of alevosía? Article 22.1 of the Spanish Código Penal affirms that hay alevosía cuando el culpable comete cualquiera de los delitos contra las personas empleando en la ejecución medios, modos o formas que tiendan directa o especialmente a asegurarla, sin el riesgo que para su persona pudiera proceder de la defensa por parte del ofendido.

Thus alevosía implies committing a crime in a manner that prevents the victim from defending himself, ensuring both its consummation and that the perpetrator remains unharmed. Given this definition, instead of “treachery,” “perfidy” or “malice aforethought,” alevosía may perhaps be more accurately translated as “calculated impunity.”

Translating capitulaciones matrimoniales (and notes on marital property systems)

The expression capitulaciones matrimoniales is often translated as “prenuptial (or) antenuptial agreement.” This may be correct in many circumstances, but it should be underscored that the expression can also denote a “postnuptial agreement.” In effect, capitulaciones matrimoniales traditionally refers to an agreement between the spouses, entered into either before or during the marriage and stating the marital property system (régimen económico matrimonial) that will govern the marriage. As such, it may perhaps be best described simply as a “marital property agreement.”

Briefly, the two most common marital property systems in Spain are régimen de (bienes) gananciales (“community property system”) in which all property acquired during the marriage is jointly owned by both spouses, and régimen de separación de bienes (“separate property system”) in which during the marriage spouses own property separately. In marriages governed by the community property system, bienes gananciales (often shortened to “gananciales”) refers to jointly-owned “community property,” while bienes privativos describes the “separate property” that each spouse owned before marriage or acquires by gift or inheritance during the marriage, and which is not considered a part of jointly-owned marital property.

Capitulaciones matrimoniales are sometimes also known as capítulos matrimoniales or pactos capitulares. It perhaps should also be noted that the term capitulaciones paramatrimoniales is sometimes used in Spain to denote the cohabitation agreement that nonmarital couples sign when registering their nonmarital union (unión de hecho).

It may likewise be of interest to note that the community property system (gananciales) is the “default system” (régimen por defecto) in the Spanish regions governed by the Civil Code. The separate property system (régimen de separación de bienes) is the default system in Catalonia and the Balearic Islands. Default marital property systems in other regions include comunicación foral de bienes in certain territories of the Basque Country, consorcio conyugal in Aragon and sociedad conyugal de conquistas in Navarre.

Common law countries traditionally observe strict separate property rules, with the exception in the US of the community property systems in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. (Alaska has an “opt-in” system allowing spouses the option to make their marital property community property). Collectively these are generally known as “community property states” in contrast to the other “separate property states,” sometimes also referred to as “common law states.” In community property states “community property” is normally defined as all property acquired during the marriage, including money and wages and items purchased with that money. “Separate property” is usually property owned by either spouse before marriage, or acquired by gift or inheritance or purchased with separate funds during the marriage.

Latinismos: vacatio legis

Vacatio legis, literally the “absence of law,” refers to the postponement of the entry into force of a law and denotes the period between the promulgation and publication of a piece of legislation and its actual taking effect.

The Spanish Civil Code (article 2) initially provides that laws shall enter into force 20 days after their publication in the Boletín Oficial del Estado (or in the boletines oficiales of the autonomous communities), unless the text of the law states otherwise. Some laws may be designated as entering into force immediately upon their official publication. And others may require a longer period of preparation and adjustment. Such was the case with Spain’s new (at that time) Ley 1/2000 de Enjuiciamiento Civil, which replaced the former Ley de Enjuiciamiento Civil de 1881 and radically changed Spanish civil procedure. In that instance a year-long vacatio legis was deemed warranted to allow judges, lawyers and other legal professionals sufficient time in which to learn and implement the new rules.

Un caso aparte is Ley 20/2011 de Registro Civil, which seeks to completely overhaul Spain’s civil register system and was initially designated to enter into force three years after its publication in the BOE. After successive extensions (prórrogas) of this initial vacatio legis, the law is now scheduled to completely enter into force on June 30, 2018. Its current “Entrada en vigor” article (Disposición final décima) is worth reproducing to underscore just how complicated a vacatio legis provision can become, since parts of the law enter (or have already entered) into force on four different dates:

La presente Ley entrará en vigor el 30 de junio de 2018, excepto las disposiciones adicionales séptima y octava y las disposiciones finales tercera y sexta, que entrarán en vigor el día siguiente al de su publicación en el “Boletín Oficial del Estado”, y excepto los artículos 49.2 y 53 del mismo texto legal, que entrarán en vigor el día 30 de junio de 2017.

Lo dispuesto en el párrafo anterior se entiende sin perjuicio de la entrada en vigor el 15 de octubre de 2015 de los artículos 44, 45, 46, 47, 49.1 y 4, 64, 66, 67.3 y disposición adicional novena, en la redacción dada por el artículo segundo de la Ley 19/2015, de 13 de julio, de medidas de reforma administrativa en el ámbito de la Administración de Justicia y del Registro Civil.

Hasta la completa entrada en vigor de esta Ley, el Gobierno adoptará las medidas y los cambios normativos necesarios que afecten a la organización y funcionamiento de los Registros Civiles.

Terminology of Testamentary Gifts (“devise,” “bequest,” “legacy”)

Translators of English-language wills are often puzzled by the formulaic expression “I give, devise and bequeath,” used when specifying how a testator’s estate should be divided upon his death. Is the expression redundant, or would one of the three verbs actually suffice?

Strictly speaking, a “devise” (verb: “to devise”) is a testamentary gift of real property (bienes inmuebles), the beneficiary of which is known as a “devisee.” In contrast, a “bequest” (verb: “to bequeath”) is a testamentary gift of personal property (bienes muebles), often excluding money. Thus, “devise” may be translated as legado de bienes inmuebles, while “bequest” may be rendered as legado de bienes muebles. In modern American usage “devise” and “bequest” are often used interchangeably, although the distinction largely persists in English usage. “Legacy” is often thought to more properly refer to a testamentary gift of money, although the term is likewise widely used synonymously with “bequest” to denote any gift of personal property. The beneficiary of a legacy is a “legatee.” Devises, bequests and legacies may all be equally described as “testamentary gifts.”

*This may be due, in part, to the fact that the Uniform Probate Code uses “devise” to denote both real and personal property. Its Section 1-201 General Definitions (10) states that “‘Devise,” when used as a noun means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.”


Confusing Terms: “breach,” “default,” “infringement,” “violation,” “infraction”

Although these nouns may be considered legal synonyms that are very close in meaning, they are rarely interchangeable when used in standard expressions (frases hechas) in specific contexts. Here are a few examples of the most common expressions in which they appear (there are many others!):

Breach: In contract law, “breach of contract” denotes incumplimiento contractual and is synonymous with “nonperformance” or “failure to perform.” Breach may be described as a “material breach” (incumplimiento grave) or “partial breach” (incumplimiento parcial), and it is often possible to “cure (or) remedy a breach of contract” (subsanar el incumplimiento contractual). In this context “breaching party” denotes the parte incumplidora, while “non-breaching party” is the parte cumplidora.” In contrast, in criminal or administrative law the expression “breach of the peace” refers to alteración del orden público while, in general, “breach of trust” denotes abuso de confianza. In other contexts “breach” may sometimes be rendered as quebrantamiento, as in the expressions “breach of duty” (quebrantamiento del deber) or “prison breach” (quebrantamiento de prisión), also called “breach of prison” or “prison breaking.”

Default: Like “breach,” “default” can denote incumplimiento contractual (“contractual default”). In this case, “defaulting party” denotes the parte incumplidora, while the “nondefaulting party” is the parte cumplidora.” In the context of civil procedure, “default” may refer to the nonappearance of a defendant in court (incomparecencia del demandado) or to his failure to respond to a complaint (demanda). In this instance, “to declare in default” is declarar en rebeldía, “default proceeding” is juicio en rebeldía, and “default judgment” or “judgment by default” is sentencia dictada en rebeldía. In banking law and the law of obligations in general, “default” has the additional meaning of “failure to pay a debt when due” (mora). In that sense “to be in default” (which may also be expressed as “to be in arrears”) is estar en mora, while the expression “default interest” refers to intereses moratorios, and a “default debtor” is a deudor en mora or deudor moroso.

Infringement: “Infringement” is frequently used in the context of intellectual property law to denote interference in an owner’s exclusive rights in a patent, trademark or copyright. The term is often rendered in Spanish as violación, as in “patent infringement” (violación del derecho de patente), “trademark infringement” (violación del derecho de marca) or “copyright infringement” (violación de derechos de autor).

Violación: “Violation” is used generically to denote general contraventions of law or rights and is often rendered as vulneración: “violation of the law,” (vulneración de la ley); “violation of constitutional rights,” (vulneración de los derechos constitucionales). In other respects, the expression “traffic violations” may denote lesser traffic offenses (faltas de tráfico).

Infraction: Similarly, “infraction” often refers to petty offenses and minor contraventions of rules or local ordinances and, indeed, there may be quite a bit of overlap with the term “violation”. In many US jurisdictions lesser violations of law that were previously classified as criminal offenses have been decriminalized and are now known as “infractions.” The most common are “traffic infractions” (infracciones de tráfico) for which the penalty is usually a fine, but not incarceration. Depending on local law, other civil infractions might include smoking in no-smoking areas, littering or violation of noise ordinances, among many others.

Why are copies of contracts called “counterparts”?

In Anglo-American contract terminology, a copy of a contract is known as a “counterpart.” When a contract is signed, it is customary for each party to the contract to retain a counterpart of the agreement. But why do we need this term?

In English “copy” may have two distinct meanings. The expression “he gave me a copy of his latest article” may imply me dio una fotocopia de su último artículo. But rather than referring to a photocopy, “he gave me a copy of his latest novel” probably means me dio un ejemplar de su última novela. Thus, “copy” can denote la reproducción de un documento (photocopy, facsimile, etc.) as in the first example, or the document itself, un ejemplar del documento, as in the second.

In contract law the expression “counterpart” is used to denote a copy of a contract (ejemplar de un contrato) that may be considered one of several originals of the document. Each party to a contract obviously wants his own “copy” of the agreement (in the sense of ejemplar), deemed to be an original. Clauses to that effect are often included in contracts to underscore that “This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which shall constitute together the same document” or “This Contract is executed in duplicate counterparts, each of which shall have the force and effect of an original.” Counterparts are often used to facilitate contract execution when all of the parties cannot be physically present at the signing. In this case, counterparts of the contract may be signed by different parties and are then exchanged.

The concept of signing a contract in duplicate counterparts, each deemed to be an original, is often expressed in Spanish contracts as firmado por duplicado ejemplar a un sólo efecto, or with similar wording.