Year: 2021

False Friends: “decree” vs. decreto (as used in Spain)

rebeccajowers False Friends

In Spain and in many legal contexts, decreto and “decree” may be considered false friends.

In English, judicial decisions issued by the former courts of equity were called “decrees,” as opposed to “judgments” that were rendered in courts of law. In modern usage “decree” often refers to the final decision in probate or family law proceedings: “divorce decree” (sentencia de divorcio); “decree of nullity (of marriage)” (sentencia de nulidad matrimonial).

In contrast, rather than referring to a judicial decision, as currently used in Spain decreto denotes three types of legislative instruments or orders emanating from the executive branch. The most numerous are reales decretos, defined as normas administrativas para la ejecución de las leyes. Issued by the government, reales decretos are regulations that implement legislation passed by the Cortes Generales (Spanish parliament).

A second type of decree is the real decreto legislativo which is delegated legislation initiated by the government upon an express grant of authority from the Cortes Generales. And a third, the real decreto ley is legislation that the government may enact on an urgent basis, but which must subsequently be ratified by the Congreso de los Diputados (lower house of the Spanish parliament) within 30 days. These three decretos are termed reales because they receive the King’s royal assent (sanción real).

Although these three are often translated literally as “royal decree,” “royal legislative decree” and “royal decree law,” doing so without further explanation might prompt a miscue since, given the meaning of “decree” in English, “royal decree” might be interpreted as denoting a decision rendered by some sort of royal court or in the name of the monarch, rather than to a legislative instrument or an executive order emanating from the government. In that regard, a real decreto may perhaps be described as an “implementing regulation.” And real decreto legislativo and real decreto ley may both simply be referred to in English as “laws.” If a distinction must be made in translation between the latter two, a real decreto legislativo may perhaps be described as “delegated legislation” and a real decreto ley as “emergency legislation.”

In other respects, a 2003 reform of the Ley Orgánica del Poder Judicial empowered Spanish court clerks (formerly called secretarios judiciales and now known as letrados de la administration de justicia) to issue certain types of decisions called decretos. In this case decreto and “decree” may likewise be considered false friends and equating the two could also prompt miscues in translation, since (as noted above) in Anglo-American legal systems “decrees” are issued by judges rather than by clerks of court. In this context, decretos issued by court clerks might be described as “procedural orders” or “procedural decrees” to distinguish them from judicial decrees.

How to tame compliance-related “anglicismos gone wild”

rebeccajowers Español jurídico

In a recent tweet entitled “anglicismos gone wild,” Mariano Vitetta–@marianovitetta (EN-ES translator and law professor in Buenos Aires) featured an Argentine publication* in which the term “compliance” is used multiple times. Indeed, “compliance” is definitely one of those English terms that is often present in Spanish-language company law texts. For those who prefer to avoid anglicismos when possible, here are a few of the compliance-related concepts that Spanish law firms and some of my corporate clients use:

  • compliance; regulatory compliance—cumplimiento normativo
  • compliance audit—auditoría de cumplimiento
  • compliance complaint box—buzón de cumplimiento
  • audit and compliance committee—comisión de auditoría y cumplimiento
  • criminal compliance; compliance with crime detection and prevention rules—cumplimiento normativo penal
  • compliance and crime prevention—cumplimiento normativo y prevención de delitos
  • statement of IFRS compliance—declaración de cumplimiento con las NIIF
  • anti-corruption compliance model; crime prevention/deterrence model—modelo de cumplimiento normativo penal
  • chief compliance officer (CCO); compliance manager—responsable de cumplimiento normativo
  • compliance guidelines—programa de cumplimiento normativo
  • compliance unit—unidad de cumplimiento

*Jesús-María Silva Sánchez. “Criminal Compliance: Apuntes penales sobre el cumplimiento normativo.” Hammurabi—José Luis DePalma, Editor.

Legal Spanish: A finca isn’t always a farm!

rebeccajowers Español jurídico

Finca may, of course, refer to a farm or other rural property (finca rural), and may also denote parcels of land or buildings in a city (finca urbana). Moreover, the term is often used generally as a synonym for inmueble (land, real estate or real property). Some simple examples include:

  • compraventa de finca hipotecada (sale of mortgaged land/property),
  • finca arrendada (leased property),
  • arrendamiento de fincas (leasing of property/land),
  • servidumbre de paso en beneficio de fincas enclavadas (landlocked property easement; right-of-way to landlocked property), or
  • facultad de deslindar y amojonar fincas (right to survey and mark property boundaries)

But finca has a special meaning in the context of recording rights on the Registro de la Propiedad (Land Register), being the basic unit of recorded property. As the Enciclopedia jurídica explains,

finca registral es el bien inmueble que constituye la base física del sistema registral inmobiliario. La llevanza del registro gira alrededor de la finca, por lo que ésta se define también como lo que es susceptible de abrir folio o registro particular en los libros de inscripciones. La finca ingresa en el registro mediante la llamada inmatriculación, que conlleva la apertura de folio registral destinado a dicha finca. La finca inmatriculada recibe un número propio. En el asiento de primera inscripción se describe la finca y se inscribe el derecho de su titular dominical, el inmatriculante.

Here are a few examples of how finca is used in the sense of finca registral:

  • finca inscrita (recorded property)
  • inmatriculación de la finca (initial entry of a property the Land Register)
  • finca no inmatriculada (non-recorded property/land)
  • modificación de la finca inscrita (amendment of property records)
  • subsanación de la doble o múltiple inmatriculación de una misma finca (rectification of double or multiple entries of the same recorded property)

Legal Spanish: When cortes is not a “court”

rebeccajowers Español jurídico

The internet sources that translate las Cortes Generales literally as “General Courts” are too numerous to mention. The expression obviously does not refer to a court, but rather denotes Spain’s bicameral legislature, the Spanish counterpart of the US Congress or the UK Parliament, including the Congreso de los Diputados (lower house) and the Senado (upper house). Several of the legislative assemblies of the Spanish regional governments (comunidades autónomas) are likewise called “cortes” (Cortes de Aragón, Cortes de Castilla-León, Cortes de Castilla-La Mancha, Corts Valencianes). And, in this context, rendering cortes literally as “courts” could prompt a miscue, suggesting that the institution in question is part of the Spanish judiciary or court system, and not a legislative assembly.

In that regard, although corte is indeed a synonym for tribunal de justicia in many Spanish-American jurisdictions, as used in Spain and as noted above, cortes (in the plural) generally refers to a legislative assembly, courts of justice being designated variously as juzgado, tribunal, audiencia, órgano jurisdiccional or órgano judicial, depending on the context. Corte is indeed sometimes used in Spain to refer to international courts, such as the Corte Penal Internacional (International Criminal Court in the Hague), but it is just as frequently known as the Tribunal Penal Internacional. Thus, to preclude any confusion with the court system las Cortes Generales should obviously be translated as “the Spanish Parliament,” and the autonomous community cortes as “regional (or) autonomous community legislative assemblies.”

In other respects, it should nevertheless be noted that in English “court” may also denote a legislative assembly, and the bicameral legislatures of the states of Massachusetts and New Hampshire are indeed called the “General Court,” as were formerly the legislative assemblies of Vermont and Connecticut.

And, perhaps to add to the confusion, the “General Court” (formerly, the Court of First Instance) is one of two EU judicial bodies, which together with the Court of Justice of the European Union is tasked with ensuring uniform interpretation and application of EU law.

Common Words with Uncommon Legal Meanings: “Information”

rebeccajowers Common words with uncommon legal meanings

In legal contexts “information” and información can often be considered equivalent concepts, as in información confidencial (confidential information) or delito de revelación de información clasificada (offense of disclosure of classified information). Likewise, in corporate law contexts, derecho de información refers to shareholders’ right to have access to company information.

But this is not always the case. Información privilegiada is indeed “insider information” but abuso de información privilegiada denotes “insider trading” or “insider dealing.” And información de derechos al detenido is the Spanish expression for “reading an arrestee his rights.”

As for “information,” translators may initially be puzzled the first time they see this common term used with an uncommon meaning in criminal law contexts where it denotes either the reporting of a crime (in England and Wales) called “laying an information,” or a formal criminal charge brought by a prosecutor (in the US).

For information(!), here are the pertinent definitions:

  • laying an information—giving a magistrate a concise statement (an information), verbally or in writing, of an alleged offense and the suspected offender, so that he can take steps to obtain the appearance of the suspect in court. Information can be laid by any member of the public, although it is usually done by the police (Oxford Dictionary of Law)
  • information—a formal criminal charge made by a prosecutor without a grand-jury indictment (Black’s Law Dictionary)

So, what are possible translations of “information” in these contexts? In the first case (the Oxford Dictionary definition for England and Wales), “information” might be rendered as denuncia de un delito (perhaps more commonly expressed in the US as a “crime report”), while “laying an information” might be translated as denunciar un delito (also more likely to be expressed in US English as “reporting a crime”). In the second case (the Black’s Law Dictionary definition), “information” could appropriately be rendered as escrito de acusación, which in Spain is the term denoting a prosecutor’s (fiscal) charging instrument.

False Friends: asesor vs. assessor; asesorar vs. to assess; asesoramiento vs. assessment

rebeccajowers False Friends

Despite appearances, asesorar and “assess” are false cognates. The verb asesorar does not mean “to assess,” but rather “to advise.” Thus an asesor is an “advisor” or “consultant,” and the term is frequently used in expressions such as asesor fiscal (“tax advisor” or “tax consultant”), asesor jurídico (“legal counsel”) or asesor jurídico de empresas (“corporate counsel”).

In contrast, the verb “to assess” often has the meaning of calcular, evaluar or tasar. Thus, in the context of insurance law and personal injury claims “assessment of damages” may refer to tasación (or) peritaje de daños. In the context of tax law, “tax assessment” often denotes liquidación de impuestos in the sense of calculating taxes due. In that regard, the expression “self-assessment,” widely used in the UK, corresponds to what in Spain is known as autoliquidación del impuesto, i.e., a taxpayer’s calculation of the taxes he owes using a “self-assessment tax return form” (modelo de declaración) for the tax in question. “Assessor” in this context has the meaning of tasador, and a “tax assessor” assesses or calculates (tasa) values (of property, assets, income, etc.) for tax purposes, performing duties similar to those of a Spanish inspector actuario (a “tax auditor-actuary” or “tax inspector-actuary”).

Regarding the noun “assessment,” in the terminology of civil procedure in England and Wales the expression “assessment of costs” denotes what in Spanish courts is called tasación de costas, describing the process of determining the amount of costs to be awarded the prevailing party in litigation (known as “taxation of costs” in the US). And in other respects, asesoramiento generally refers to “advising (or) consulting services,” as in asesoramiento financiero (“financial consulting services”) or asesoramiento jurídico (“legal counsel” or “legal advice”).

Legal English: What is a “cloud on title”?

rebeccajowers Common words with uncommon legal meanings

“Cloud” is one of those everyday English terms whose legal meaning is totally unrelated to its common one. Indeed, in legal contexts “cloud” has absolutely nothing to do with nubes, but rather is basically a synonym of “defect” as used in the expression “cloud on title.” Black’s 6th explains that cloud on title is an “outstanding claim or encumbrance which, if valid, would affect or impair the title of a particular estate,” while Black’s 8th simplifies the definition describing it as a “defect or potential defect in the owner’s title to a piece of land arising from a claim or encumbrance.” Aspects that could be considered a “cloud on title” include either (1) liens, mortgages, judgments and tax levies (etc.) on the property in question, or (2) actual defects in the title deed itself.

“Cloud on title” is a difficult expression to render in Spanish. The Cabanellas-Hoague EN-ES dictionary simply defines the concept as factor que incide negativamente sobre la certeza o validez de un título inmobiliario, sea por referirse a la existencia y transmisión del derecho previsto en ese título o los gravámenes o cargas respecto de tal derecho, without offering a Spanish translation. Google Translate and DeepL’s nube sobre el título obviously won’t work. The definitional renderings imperfección del título and título insuficiente (Alcaraz-Hughes) give an idea of the meaning, but perhaps don’t ring true in legal Spanish. And the same may perhaps be said of the defecto de título that often appears in Internet sources.

Adding to this difficulty is the fact that in this context the meanings of “title” and título may not actually be equivalent concepts. In that regard, “title” often refers to a document evidencing ownership (an already-registered “title deed”—title to my house; title to my car), while título denotes the documents evidencing different types of transactions that a rightsholder may apply to have recorded on the the Spanish Registro de la Propiedad. Thus, registrable rights (títulos inscribibles) include not only ownership of property (dominio; propiedad), but also any other of the rights in property (derechos reales) that one may seek to register (hipotecas, usufructo, servidumbres, etc.)

So, getting back to “cloud on title,” if the reference is to liens, mortgages, judgments or tax levies, perhaps “cloud” can be viewed here simply as an encumbrance (gravamen) on the property in question and “cloud on title” rendered as gravamen sobre el inmueble. But if the reference is actually to a defect in a registered title, this is known (at least in Spain) as inexactitud del Registro, and perhaps in this case “cloud on title” could be rendered as inexactitud registral.

Note: I’ve used plenty of wishy-washy “mays,” “perhaps” and “maybes” above, because “cloud on title” is very close to being one of the true intraducibles of Legal English.

Latin in Legal Spanish: Principios del Derecho penal

rebeccajowers Latinismos

The announcement that Latin is to be introduced as a new subject in English state schools got me thinking that you really don’t need to know Latin to understand Spanish criminal law, but it helps! Spanish criminal law textbooks generally commence with an explanation of the underlying principles of the discipline, many of which are rooted in Latin. In the event this may be of interest to followers of this blog, here is a brief overview of some of the basic principios del Derecho penal:

Principio de lex scripta, praevia et certa—principle that criminal laws must be written, clear and non-retroactive:

  • lex scripta expresses the idea that criminal norms must be written (i.e., enacted in a statute or code)
  • lex praevia prohibits retroactive or ex post facto criminal laws, embodying two principles (nullum crimen sine praevia lege; nulla poena sine praevia lege) that provide that only those who commit an act defined as an offense in a previously-enacted law can be convicted or punished, and
  • lex certa underscores that criminal laws must be clear and unambiguous, being akin to the common law “void-for-vagueness doctrine” providing that a criminal statute that does not clearly specify what is allowed or prohibited is unconstitutional and a violation of due process.

Principio de nulla poena sine legale iudicio—principle that there can be no punishment without a legal (fair) trial with all due process guarantees

Principio de nulla poena sine culpa—principle that no one may be punished for a wrongful act if not culpable, nor inflicted with a punishment that exceeds the extent of his culpability

Principio pro actione—principle that the courts should facilitate access to justice

There are of course other criminal law principles that are not expressed in Latin (principio de la proporcionalidad de la pena; principio de la humanidad de las penas, etc.), as well as those concerning criminal trials and due process (el proceso penal y las garantías procesales), which I can perhaps address in a future blog post.

Ellipsis in Legal Spanish: la absolutoria; la condenatoria

rebeccajowers Ellipsis in Legal Language

Among the ellipses that constantly appear in legal Spanish documents, in procedural law contexts the expressions la absolutoria and la condenatoria obviously refer to sentencias (“judgments”): la sentencia absolutoria; la sentencia condenatoria.

But (¡ojo!) the correct English rendering will depend on whether the text to be translated concerns civil or criminal procedure. In civil proceedings la absolutoria refers to a “judgment for the defendant,” while la condenatoria denotes a “judgment for the plaintiff (or) claimant.” In contrast, in the context of criminal proceedings la absolutoria denotes a “judgment of not guilty” or an “acquittal,” while la condenatoria is a “judgment of guilty” or a “conviction.” Thus,

  • sentencia absolutoria =
    • judgment for the defendant (in civil proceedings)
    • acquittal (of the defendant in criminal proceedings)
  • sentencia condenatoria =
    • judgment for the plaintiff/claimant (in civil proceedings)
    • conviction (of the defendant in criminal proceedings)

False Friends in ES-EN-ES Translation: violación vs. violation

rebeccajowers False Friends

“Violation” is a common Legal English term denoting the contravention of a right, principle or prohibition, and in this context it can often be rendered literally as violación: “violation of human rights” (violación de los derechos humanos); “violation of international law” (violación del Derecho internacional) or “violation of the proportionality principle” (violación del principio de proporcionalidad).

But, violación cannot always be appropriately translated as “violation,” particularly in criminal law contexts. In that regard, delito de violación is “rape,” while violación de las condiciones de la libertad bajo fianza is commonly known as “bail-jumping,” “bail-skipping” or “jumping/skipping bail.” The generic term violación de secretos denotes “breach of confidentiality” or “disclosure of confidential (or) privileged information,” in contrast to violación de secretos industriales and violación de secretos empresariales that refer more specifically to “disclosure of trade secrets.” When referring to patents or trademarks, violación de patente/marca is best rendered as “patent/trademark infringement.” And violación de domicilio may be translated as “trespass to dwelling.” As a final example, violación de sepulturas is most often referred to in English as “profanation of tombs.”