Year: 2018

They may not mean what you think! (Legal meanings of “molest” and “molestation”)

rebeccajowers Legal English in the US and the UK
Photo by Tookapic on Pexels.com
Photo by Alexander Krivitskiy on Pexels.com

In everyday Spanish usage, molestar means “to bother,” “to disturb,” “to cause annoyance” or “to be a nuisance.” Thus me molesta cuando hablas con la boca llena simply means “it bothers me when you talk with your mouth full.” That’s why the “Do not disturb” signs in hotels in Spain say No molestar.

But “molest” and “molestation” have specific legal meanings that translators and legal professionals who use English can’t afford to ignore. Moreover, the terms denote something radically different in British and American legal usage, with a potential for prompting serious translation mistakes.

In legal contexts, British usage of “molest” and “molestation” is close to the Spanish meaning. For example, in cases of domestic abuse, under the Family Law Act 1996 in force in England and Wales, a judge may issue a specific type of injunction known as a “non-molestation order” to a spouse or partner (the “respondent”), prohibiting him or her from harassing or sometimes even having contact with the other spouse or partner. Some of the standard prohibitions found in a non-molestation order read as follows:

The respondent, [YY], must not use or threaten violence against the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not intimidate, harass or pester the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not telephone, text, email or otherwise contact or attempt to contact the applicant, [XX], [except for the purpose of making arrangements for contact between the respondent and the children of the family] / [except through [his]/[her] solicitors [insert name, address and telephone number]].

The respondent, [YY], must not damage, attempt to damage or threaten to damage any property owned by or in the possession or control of the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not damage, attempt to damage or threaten to damage the property or contents of [the family home]/[insert property], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not go to, enter or attempt to enter [the family home] / [insert property] / [any property where he knows or believes the applicant, [XX], to be living], and must not go [within [insert] metres of it] / [along the road(s) known as [insert]], except that the respondent may [go to the property [without entering it]] / [go along the road(s) known as [insert]] for the purpose of collecting the children of the family for, and returning them from, such contact with the children as may be agreed in writing between the applicant and the respondent or in default of agreement ordered by the court.

In the US this type of injunction is often referred to generically as a “restraining order” or “order of protection.” In some states similar orders are known as “domestic violence protection orders” or “DVPOs,” “stay away orders” or “no contact orders.” But never are they referred to as “non-molestation orders,” as they are known in England and Wales.

Indeed, in American legal language “molestation” most often has quite a different meaning, being a criminal law term denoting a type of sex crime against children, i.e., “child molestation,” whose definition may vary in the criminal codes of each state, but that generally refers to a “wide variety of activities perpetrated against children by adults that have sexual undertones. While sexual activity clearly falls within the scope of child molestation, the crime also applies to other forms of inappropriate touching, including non-penetrating contact, exposure of a minor to pornography, or convincing a minor to view sexual acts.”** In this context, “to molest” is to commit some sort of sexual abuse, and the person committing such an offense is known as a “child molester.”

Thus translating “molest” and “molestation” requires taking into account which of these two meanings is intended. The “non-molestation” order of the Family Law Act 1996 is similar to the orden de alejamiento issued by Spanish courts and might provide a valid translation. In contrast “child molestation” may perhaps be rendered as abusos sexuales a menores or with a similar expression.

* https://www.judiciary.uk/wp-content/uploads/…orders…/non-molestation-order.doc

** https://www.justia.com/criminal/offenses/sex-crimes/child-molestation/

Mistranslations: usufructo is not (necessarily) a “life interest” in property

rebeccajowers Mistranslations?

Can this be a MISTRANSLATION_

In the past I have seen usufructo translated into English variously as “life interest,” “life interest trust” and “life estate.” All of these translations imply that usufructo is, by definition, always a grant of the use and enjoyment of property for the lifetime of the beneficiary.

This translation is misleading and may be patently incorrect in many contexts when, for example, usufructo is granted for a specific period of time (called usufructo a plazo, usufructo a término, usufructo temporal or usufructo constituido por tiempo determinado). An example of usufructo a plazo would be the usufruct of a dwelling granted to the guardian of a minor child until the child reaches the age of majority. In such cases usufructo may perhaps be rendered as “beneficial interest” or even “beneficial ownership,” given that “beneficial owner” is “one recognized as the owner of something because use and title belong to that person, even though legal title may belong to someone else” (Black’s Law Dictionary).

Usufructo is likewise often subject to a condition (usufructo condicional), being another mode of usufruct that cannot be translated as “life interest,” “life interest trust” or “life estate.” Indeed, usufructo may be subject to a condition precedent (condición suspensiva), such as usufructo granted to a son or daughter provided that he/she marries. Likewise usufructo condicional may be subject to a condition subsequent (condición resolutoria), such as usufructo granted to a son/daughter that will terminate if he/she doesn’t marry by the time he/she is thirty years old. These are admittedly silly examples but that, once again, demonstrate that usufructo cannot always be equated with a “lifetime interest” or “lifetime estate.”

In summary, perhaps it is best to translate usufructo (a secas) as “beneficial interest” and reserve “life interest,” “life interest trust” and “life estate” for situations that actually refer to usufructo vitalicio.

See more on usufructo here:

20 Answers: Terminology of Tort Law

rebeccajowers Legal English for Spanish-speakers

20 Questions...(2)

Here are the answers to the exercise on tort law terminology published in a previous blog entry:

1) A person who commits a tort: TORTFEASOR

2) An act of force or threat of force that puts a person in fear of imminent harm: ASSAULT

3) Defense against negligence that states that the plaintiff knew of the risk involved and still took the chance of being injured: ASSUMPTION OF RISK

4) An act that annoys or disturbs another person in his use, possession or enjoyment of his property: NUISANCE

5) Liability imposed upon a person due to the act or omission of another: VICARIOUS LIABILITY

6) Unauthorized entry or intrusion on the real property of another: TRESPASS

7) A false statement of fact designed to deceive: MISREPRESENTATION

8) A false and malicious publication (printing, writing, sign, picture) that harms another’s reputation: LIBEL

9) The intentional and offensive touching of another without consent and without lawful justification: ASSAULT

10) Wrongfully depriving a person of the use and possession of an item of personal property: CONVERSION

11) Deceit or deception intended to induce another to surrender something of value or a legal right: FRAUD

12) A false and malicious statement that harms another’s reputation: SLANDER

13) The liability of a manufacturer or seller for injury resulting from a defect in a product sold: PRODUCT LIABILITY

14) Mental anguish or physical pain for which damages may be recovered in tort litigation: PAIN AND SUFFERING

15) A private wrong committed by one person against another: TORT

16) Liability for an injury whether or not there is fault or negligence: STRICT LIABILITY (also called ABSOLUTE LIABILITY or LIABILITY WITHOUT FAULT)

17) A legal doctrine under which a master (employer) is responsible for torts committed by his servants (employees) during the scope of their employment: DOCTRINE OF RESPONDEAT SUPERIOR

18) Two or more people who participate together in the commission of a tort: JOINT TORTFEASORS

19) Wrongful; implying or involving tort: TORTIOUS

20) The intentional confinement of a person without legal justification: FALSE IMPRISONMENT or FALSE ARREST

 

20 Questions: Terminology of Tort Law

rebeccajowers Legal English for Spanish-speakers

20 Questions...(1)

This is an exercise that I use with my students of Legal English at the Universidad Carlos III in Madrid. After finishing each unit, we often review dictionary definitions of the legal terms and concepts that we’ve discussed in class to make sure they’re clear. Several students who follow this blog suggested that I might make exercises of this nature available here in the event that they may prove useful to other readers.

This one concerns “Tort Law,” akin to the legal discipline that in Spain is most-commonly known as Derecho de daños, i.e., el Derecho de la responsabilidad civil extracontractual). So, here goes…

Please provide a tort law term for the following definitions (Answers appear here):

1) A person who commits a tort:

2) An act of force or threat of force that puts a person in fear of imminent harm:

3) Defense against negligence that states that the plaintiff knew of the risk involved and still took the chance of being injured:

4) An act that annoys or disturbs another person in his use, possession or enjoyment of his property:

5) Liability imposed upon a person due to the act or omission of another:

6) Unauthorized entry or intrusion on the real property of another:

7) A false statement of fact designed to deceive:

8) A false and malicious publication (printing, writing, sign, picture) that damages another’s reputation:

9) The intentional and offensive touching of another without consent and without lawful justification:

10) Wrongfully depriving a person of the use and possession of an item of personal property:

11) Deceit or deception intended to induce another to surrender something of value or a legal right:

12) A false and malicious statement that harms another’s reputation:

13) The liability of a manufacturer or seller for injury resulting from a defect in a product sold:

14) Mental anguish or physical pain for which damages may be recovered in tort litigation:

15) A private wrong committed by one person against another:

16) Liability for an injury whether or not there is fault or negligence:

17) A legal doctrine under which a master (employer) is responsible for torts committed by his servants (employees) during the scope of their employment:

18) Two or more people who participate together in the commission of a tort:

19) Wrongful; implying or involving tort:

20) The intentional confinement of a person without legal justification:

False Friends (24): evicción; eviction

rebeccajowers False Friends

Oh, no! False Friends

Evicción and “eviction” are truely false cognates. En English “eviction” denotes “the act or process of legally dispossessing a person of land or rental property” (Black’s Law Dictionary). The corresponding term in Spanish is desahucio, as in desahucio del inquilino por impago del alquiler (“eviction of the tenant for failure to pay the rent”) or desahucio del arrendatario por expiración del contrato de arrendamiento (“eviction of the tenant upon expiration of the lease”).

In contrast, in Spanish evicción refers to the loss of title to or possession of property due to a third party’s superior title. Thus, in the context of real estate sales, the often-mistranslated expression saneamiento por evicción denotes a type of “warranty of title,” “warranty of good title” or “warranty against loss of title,” i.e., the seller’s guarantee to the buyer he will enjoy undisturbed legal possession of the purchased property (posesión legal y pacífica de lo vendido). If, after the sale, a court rules that another person holds superior title (mejor derecho) to the property, the seller must compensate the buyer as established by law.* Likewise, in the context of lease agreements saneamiento por evicción constitutes a “warranty of quiet enjoyment,” that is, the lessor’s guarantee that the lessee will enjoy undisturbed possession (que no será perturbado en su posesión) of the premises for the duration of the lease.

*In that regard, buyers’ rights in Spain are explained in detail in this article on Saneamiento por evicción en la compraventa..

 

Mistranslations of Ministerio Fiscal and Ministerio Público

rebeccajowers Mistranslations?

Can this be a MISTRANSLATION_

Several Spanish web sources and a monograph published in English on the Spanish legal system translate Ministerio Fiscal literally as “Fiscal Ministry,” and this rendering may prompt readers unfamiliar with Spanish institutions to assume that the Ministerio Fiscal is in some way related to taxes or the tax authorities. In English “fiscal” often denotes “of or relating to financial matters, public finance or taxation” (Black’s Law Dictionary) and, thus, the literal translation “Fiscal Ministry” may indeed erroneously suggest that the Ministerio Fiscal is a Ministerio para asuntos fiscales or “Tax Ministry.”

But in fact Ministerio Fiscal (as well as Ministerio Público and Fiscalía) all refer to Spain’s “Public Prosecution Service,” (or) “Office of the Public Prosecutor,” and in this context a fiscal is a “public prosecutor” (called “district attorney” in many US jurisdictions). In summary (and despite the name), the Ministerio Fiscal is not a government ministry and is totally unrelated to taxation, the term simply denoting Spain’s autonomous “Public Prosecution Service.” In contrast, as a part of the Ministerio de Economía y Hacienda (“Ministry of Economy and the Treasury”) the Agencia Tributaria is Spain’s tax service, similar to the Internal Revenue Service (IRS) in the US or HM Revenue & Customs (formerly Inland Revenue) in the UK.

Likewise, Ministerio Público has also often been translated literally as “Public Ministry,” and even as “ministerial office.” But, once again, these renderings fail to convey the fact that Ministerio Público is simply another term for Ministerio Fiscal.

For US audiences Ministerio Fiscal, Ministerio Público and Fiscalía have sometimes been translated as “Justice Department” or “Attorney General’s Office,” and Fiscal General del Estado has often been rendered as “Attorney General.” But, once again, these may not be accurate renderings for those Spanish institutions. The position of the Department of Justice within the executive branch of the US government is actually more akin to the Spanish Ministerio de Justicia. While the Attorney General is part of the US President’s Cabinet (as is the Ministro de Justicia who sits on the government’s Consejo de Ministros), as underscored above, the Ministerio Fiscal (despite being called a “ministerio”) is an autonomous entity that is not a government ministry at all. Moreover, the Fiscal General del Estado is not a cabinet member (miembro del Consejo de Ministros), but rather may perhaps be described as the “Chief Public Prosecutor” or “Head of the Public Prosecution Service.” Thus, “Public Prosecution Service” would again appear to be a more accurate translation for Ministerio Fiscal, Ministerio Público and Fiscalía, even for US readers. And, in other respects, rendering these three terms as “Crown Prosecution Service” for UK audiences may likewise be equally inappropriate, since criminal prosecutions in Spain are not brought “on behalf of the Crown” as they are in the UK and other Commonwealth countries.

The Role of Notaries Public in the US

rebeccajowers Legal English for Spanish-speakers

What does a US notary do_

Spanish lawyers soon discover that they have to explain to many of their English-speaking clients the role that Spanish notarios (or civil law/Latin notaries, in general) play in ensuring legal certainty in civil law systems, why notarios must intervene in many seemingly everyday transactions and, ultimately, why they charge what they do(!).

But the opposite is also true: I’m sometimes asked about the role of notaries in the US, and I recently found an excellent answer to that question in an article that I’m sharing in a link below. Published in the Colegio Notarial de Madrid’s journal El Notario del Siglo XXI, the article entitled “¿Qué es lo que hace un ‘notary public’?” was written by José Antonio Márquez González, Mexican notario and member of the International Union of Notaries (UINL). It explains in Spanish and in detail the work of US notaries, providing sample texts in English and an extensive bibliography in the footnotes. It’s available here:

http://www.elnotario.es/practica-juridica/7317-que-es-lo-que-hace-un-notary-public

 

Use of interesar in Legal Texts

rebeccajowers Common words with uncommon legal meanings

legal words

Rather than “to manifest interest” as the term is sometimes rendered, in legal contexts interesar often has the meaning of solicitar (to request, to petition, to motion, etc.), especially when used in pleadings and other court documents. As defined in the DLE, “interesar may mean “solicitar o recabar de alguien, datos, noticias, resoluciones, etc.” Here are a few examples in which interesar denotes solicitar in the sense of “petitioning the court,” with possible English translations:

  • práctica de la prueba que interesábamos en nuestro escrito de querella (examination of evidence requested in our criminal complaint)
  • el Ministerio Fiscal interesó que se hiciera a los solicitantes audiencia (the prosecution moved that the applicants be granted a hearing)
  • se interesaba que se señalara nuevo día y hora para la vista (a motion to continue was filed, requesting a change of date and time for the hearing)
  • se presentó escrito por el que se interesaba el sobreseimiento de las actuaciones (a motion to dismiss was filed)
  • el demandante interesaba una indemnization por daños (the plaintiff filed for damages)

Terminology Sources: An Overview of English Law

rebeccajowers Terminology Sources

uk parliament-2

The “In Brief” legal resource website is a must for translators, interpreters and legal professionals who need to acquire a working knowledge of the law of England and Wales in many of the major legal disciplines. It describes itself as a “growing legal resource providing information on a variety of legal issues” that “aims to be the largest source of legal material of its kind anywhere on the Internet.” This may appear to be somewhat of an exaggeration, but the information provided does indeed cover an extensive range of legal topics, including

  • Agricultural Law
  • Animal Law
  • Business Finance
  • Charity Law
  • Child Law
  • Civil Court
  • Claim Preparation
  • Clinical Negligence
  • Company Law
  • Consumer Law
  • Contract Law
  • Court Judgements
  • Court Proceedings
  • Discrimination Law
  • Divorce Law
  • Employees
  • Employers
  • Estate Law
  • Football Law
  • Human Rights
  • Immigration Law
  • Intellectual Property
  • Land Law
  • Legal System
  • Marriage Law
  • Media Law
  • Motoring Law
  • Offences
  • Personal Finance
  • Personal Injury
  • Police
  • Preparing For Trial
  • Property Law
  • Regulations
  • Sales Law
  • Sports Law
  • Types of Claim

Explore more here: https://www.inbrief.co.uk/

Spelling Differences (American vs. British English)

rebeccajowers Legal English for Spanish-speakers

 

us-uk-friendship

This post is not specifically on legal language, but several of my students of Legal English at the Universidad Carlos III asked me to summarize for them the basic differences between American and British spelling. I am including here part of a handout that I prepared for them in the event it may be of interest to a wider audience.

In researching this I came across an interesting article in the Daily Mail* that outlines the progression of the supposed acceptance of many American spellings in English worldwide. It maintains that as early as the 1880s English language publications began to prefer American spelling, which became even more popular after World War I. Charts appearing on seemit** actually show the years in which certain American terms supposedly surpassed the British (“gray” vs. “grey;” “flavor” vs. “flavour;” “liter” vs. “litre,” etc.)

Nevertheless, translators, legal professionals and students of legal English should be aware of what are still considered the preferred spellings on each side of the “Pond.” There may be some flux and leeway, and some may not view these as set-in-stone rules, but here is a minimal collection of US vs. UK spellings appearing on the Oxford Dictionaries website*** and in other sources:

Words ending in “-er”/“-re”
American Usage British Usage
center centre
fiber fibre
kilometer kilometre
liter litre
theater/theatre theatre
Words ending in “-or”/“-our”
American Usage British Usage
behavior behaviour
color colour
flavor flavour
humor humour
labor labour
neighbor neighbour
Words ending in “–ize”/“-ise”
American Usage British Usage
apologize apologize/apologise
emphasize emphasise
organize organize/organise
recognize recognize/recognise
Words ending in “-yze”/“-yse”
American Usage British Usage
analyze analyse
catalyze catalyse
paralyze paralyse
One “l” vs. two “ll”
American Usage (“l”) British Usage (“ll”)
travel travel
traveled travelled
traveling travelling
traveler traveller
fuel fuel
fueled feulled
fueling fuelling
counselor counsellor
American Usage (“ll”) British Usage (“l”)
enrollment enrolment
fulfill fulfil
installment instalment
skillful skilful
Words with “e” in American English and “ae”/”oe” in British
American Usage British Usage
leukemia leukaemia
maneuver manoeuver
estrogen oestrogen
pediatric paediatric
Nouns ending in “-ense”/“-ence”
American Usage British Usage
defense defence
license licence
offense offence
pretense pretence
Nouns ending with “-og”/“-ogue”
American Usage British Usage
analog/analogue analogue
catalog/catalogue catalogue
dialog/dialogue dialogue
Miscellaneous
American Usage British Usage
airplane aeroplane
check cheque
cozy cosy
curb kerb
draft draught/draft
gray grey
jail gaol
mold mould
plow plough
program programme

* Cheyenne MacDonald. “The future is gray for British English: How American Spellings are taking over the world with ‘flavor,’ ‘center’ and ‘defense’ becoming the norm.” Daily Mail, July 27, 2016. http://www.dailymail.co.uk/sciencetech/article-3711638/The-future-gray-British-English-Graphs-reveal-American-spelling-taken-1880s.html

** “The Decline of British English, Visualized” (author: oakstone) https://steemit.com/steemit/@oakstone/the-decline-of-british-english-visualized

*** https://en.oxforddictionaries.com/spelling/british-and-spelling)