This fairly obscure term is sometimes used in Spain as a synonym for procurador/a, being defined in the DLE as procurador o representante de una parte en el proceso. As examples, se dio traslado al causídico… simply means that “the procurador was notified” about the matter in question. Apoderamiento del causídico denotes “power of attorney granted to the procurador, while designación de causídico mediante comparencia ante el Secretario Judicial is a reference to a client’s appointment (i.e., grant of power of attorney) to his procurador in person in the presence of a court clerk (known formally as designación apud acta), rather than by submitting a poder notarial (“notarial power of attorney”).
Month: October 2020
Confusing Terms in Legal English: “executor” vs. “administrator”
As used in inheritance law (Derecho de sucesiones) these are related terms that are sometimes confused. An executor of a will is an albacea testamentaria, that is, a person appointed by a testator in his will to carry out its provisions upon his death. A female executor was formerly known as an “executrix” (plural: “executrices”), a term now considered archaic, “executor” now being the preferred English designation for albaceas testamentarias of both sexes.
In contrast, a person appointed by a court to manage the estate of an intestate decedent (causante muerto intestado) or when no executor has been appointed is called an “administrator” (in Spanish, albacea judicial or albacea dativo). Although “administrator” is now used for an albacea judicial of either sex, a female administrator was formerly known as an “administratrix” (plural: “administratrices”).
Appellate Judgments in the US and UK (translating estimar and desestimar
It is often difficult to translate estimar and desestimar in the context of appellate decisions, and the problem often lies in confusing American and British usage. When an appellate court accepts an appeal as having merit (estima el recurso), this is expressed in England and Wales as “the appeal is allowed,” while desestima el recurso is expressed as “the appeal is dismissed.” Thus British usage mirrors the Spanish in that both reflect the appellate court’s decision from the perspective of the appeal itself.
In contrast, in American usage the appellate court views the appeal from the perspective of the lower court’s decision. Rather than indicating that the “appeal is allowed” (se estima el recurso) as in England, in AmE the lower court’s judgment is “reversed” (literally, se revoca la sentencia en primera instancia). Likewise, to denote desestimación del recurso, in AmE the lower court’s judgment is “affirmed” (literally, se confirma la sentencia en primera instancia). And, in effect, the first thing that appears on opinions rendered in appeal proceedings in the US is the word “AFFIRMED” or “REVERSED” in capital letters.
If it is unclear whether a translation is intended for US or UK audiences, it may be helpful to use a “safe” (and admittedly rather wordy) rendering that combines both British and American usage. Thus, se estimó el recurso may be expressed as “the appeal was allowed, thus reversing the lower court’s decision,” while se desestimó el recurso would be “the appeal was dismissed, thus affirming the lower court’s decision.” In these translations both US and British readers would immediately see the key words that they recognize as indicating whether the appeal was accepted as having merit (“allowed,” “reversed”) or not (“dismissed,” “affirmed”).
In other respects, it should perhaps be noted that in this context “allowed” and “dismissed” do not mean admitido and inadmitido. In that regard, el recurso ha sido admitido (a trámite) merely indicates that it meets the formal requirements and has been admitted to prosecution for an eventual decision on the merits. An appeal that fails to meet formal requirements will be inadmitido, although defects can often be be cured (subsanados) and the appeal subsequently allowed to proceed.
Legal English: Labor Law Look-alikes “Job Safety” and “Job Security”
The labor law look-alike expressions “job safety” and “job security” would appear to be synonymous and are sometimes confused in translation. But “job safety” refers to health and safety in the workplace, i.e., the proper conditions to ensure a worker’s safety on the job (in Spanish, seguridad en el trabajo). In contrast, “job security” refers to the probability that a worker will keep his job and to possible legal impediments that make dismissing workers more difficult or onerous for employers. Thus, “job security” in Spanish may be expressed as seguridad laboral, estabilidad laboral or estabilidad en el trabajo.
Legal Meanings of “stay”
In nonlegal contexts “stay” is generally a synonym of “remain.” But in the language of court procedure “stay” (as a noun and as a verb) has a peculiar meaning, often referring to the postponement or suspension of a judicial proceeding. In that regard “to stay a trial” means suspender el juicio, while “stay of proceedings” may be rendered as suspensión de las actuaciones. And in reference to a court’s ruling, the expressions “stay of enforcement” and “stay of execution” both denote suspensión de la ejecución (de una sentencia). In that regard, although nonlawyers may associate the expression “stay of execution” specifically with the suspension of a death sentence, the expression may actually denote the suspension of the enforcement of any judgment.
Weird Legal English: What do you mean by “take against the will”?
This seemingly cryptic expression “to elect to take against the will” denotes “a spouse’s statutory right to choose, upon the other spouse’s death, either the share under the deceased spouse’s will or the share of the estate as defined in the probate statute, which usually amounts to what a spouse would have received had he died intestate” (Black’s Law Dictionary). In this context “statutory share of the estate” refers to the porción sucesoria legal, while “share under the deceased spouse’s will” is the porción sucesoria dispuesta en el testamento. Thus, the surviving spouse’s “right to elect to take against the (other spouse’s) will” is el derecho del cónyuge supérstite de optar por la porción sucesoria legal en lugar de la dispuesta en el testamento del cónyuge difunto.
It should be noted that “take against the will” has sometimes been mistranslated as impugnar el testamento, which in English is more properly expressed as “to contest (or) to challenge the will.” When probate laws allow a surviving spouse to elect to take against the will, the spouse can choose to apply the provisions of the law rather than the provisions of his/her deceased spouse’s will. But in order to elect to take against a decedent’s will, the surviving spouse does not have to contest or challenge (impugnar) that will, but rather, depending on the jurisdiction, must usually appear before a probate judge to confirm that choice and to “file an election to take against the will form.” This implies filing a document certifying that the surviving spouse freely chooses to take against the will and fully understands the implications of doing so.
Legal Meanings of “file” and “to file”
In nonlegal usage, “file” and its verb form “to file” are most often associated with the meanings archivo and archivar. In that sense, expediente is often the term that denotes a court’s (or a lawyer’s) “case file.” But in legal language “filing” is must often be translated as presentación while, as a verb, “to file” is generally rendered as presentar. In that regard, in procedural contexts “filing (or) entering an appearance (in the proceedings)” corresponds to a party’s personación (en la causa/en autos) in Spanish procedure. In civil litigation one may “file a complaint or counterclaim” (presentar una demanda o reconvención), while in criminal contexts one may “file (or) bring charges” (presentar una denuncia/querella). In family proceedings, a spouse may “file for divorce” (presentar demanda de divorcio), and in guardianship cases a potential guardian “files for guardianship” (promueve la constitución de la tutela). As a final example, in tax law contexts, one “files a tax return” (presenta la declaración de la renta).
Legal English in the US and UK: “stock” vs. “share”
I think I may have blogged about this before, but I can’t figure out why some people have the notion that “shares” and “shareholder” are the British English terms for acciones and accionista, while the American English equivalents are “stock” and “stockholder.”
Although many online sources insist that “stock” is the US term for “share,” this is simply not the case. Indeed, “share” and “shareholder” are actually the terms used in the American Bar Association’s Model Business Corporation Act (MBCA) and its revised version (RMBCA), adopted in whole or in part in over half of the fifty US states.
In that regard, in the United States corporate law is state law, and which of these terms are preferred perhaps depends on the terminology chosen in a given state’s corporation law or code. For example, in the Delaware General Corporation Law it’s “stock” and “stockholder,” while the California Corporations Code uses “share” and “shareholder.”