Español jurídico: What is a contrato de comisión?

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It is sometimes wrongly assumed that the expression contrato de comisión refers exclusively to an agreement whereby an employee, agent or representative works solely on commission (trabaja a comisión) rather than receiving a fixed salary or other compensation. In that regard, contrato de comisión has at times been erroneously translated as a “sales commission agreement” or “commission-only agreement.”

But the Spanish Commercial Code’s contrato de comisión doesn’t necessarily denote “working on commission,” but rather is a type of agency agreement in which a principal (comitente) commissions an agent (comisionista) to carry out a specific commercial transaction on his behalf (the comisión). In that regard, the contrato de comisión may be considered the Commercial Code counterpart of the Spanish Civil Code’s contrato de mandato in which a principal (mandante) commissions an agent (mandatario) to perform a specific service (mandato). Depending on the context, both contrato de comisión and contrato de mandato can often be described in English simply as “agency agreements.”

Thus, in many contexts comitente, mandante and principal can generally be translated as “principal,” while comisionista, mandatario, agente and often gestor can be rendered as “agent.” If it is necessary to distinguish between the Commercial Code and Civil Code counterparts, a contrato de comisión might be described as a “commercial agency agreement” or “Commercial Code agency agreement,” while contrato de mandato might be rendered as “Civil Code agency agreement” or an “agency agreement governed by the Civil Code.” And of course, depending on the terms of the contrato de comisión, a comisionista may or may not “work on commission” (trabajar a comisión).

In other respects, contrato de agencia (“agency agreement”) is likewise used in Spain, having been formally defined in the Agency Agreement Act (Ley 12/1992, de 27 de mayo, sobre Contrato de Agencia), which incorporated into Spanish law the provisions of Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of EU Member States relating to self-employed commercial agents.

Read more here

Español jurídico: What is tácita reconducción?

Weird Words You Need to Know

This strange, seemingly cryptic expression is defined in the RAE’s Diccionario del Español Jurídico como prórroga del contrato de arrendamiento de fincas rústicas o urbanas que se produce cuando, una vez terminado el contrato hecho por tiempo determinado, permanece el arrendatario disfrutando quince días de la cosa arrendada con aquiescencia del arrendador.* In that regard, reconducción refers specifically to prórroga de un arrendamiento (DLE).

Tácita reconducción has often been translated literally as “tacit renewal,” described as “renewal by default” or, perhaps in more idiomatic English, rendered as “automatic renewal (of a lease).” But it should be noted that all of these translations are actually inaccurate, confusing prórroga (“extension”) with renovación (“renewal”). Thus tácita reconducción more appropriately denotes the “automatic extension” of a lease (if, as indicated in the DEJ’s definition above, fifteen days after the contract expires neither party has given notice of termination to the other).

*Código Civil, arts. 1566-1567.

Translating “hechos” across Legal Disciplines

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One of my lawyer students of Legal English recently asked me how to translate hechos, whether they are “acts,” “facts,” “events” or something else. And of course I had to reply that it depends on the context (in legal translation, context is everything). Here are a few examples from Spanish law with (possible / approximate) English translations (there may be others):

Derecho registral

  • hechos inscribibles (recordable events)

Derecho de daños

  • responsabilidad por hechos propios (personal liability)
  • responsabilidad por hechos ajenos (vicarious liability)

Derecho procesal

  • hechos aducidos (facts alleged [in pleadings, etc.])
  • hechos controvertidos (facts in issue; facts in dispute)
  • hechos no controvertidos (undisputed/uncontested facts)
  • hechos probados (proven facts; facts as found)
  • hechos notorios (facts that are common knowledge)
  • hechos notorios no necesitados de prueba (judicial facts; judicially-noticed facts)
  • hechos nuevos o de nueva noticia (new or after-discovered evidence)

Derecho penal

  • hecho típico (criminal offense; act/action/conduct defined as a criminal offense)
  • hecho constitutivo de la infracción penal (conduct constituting a criminal offense)
  • lugar de los hechos (crime scene)

Derecho tributario

  • hecho imponible (taxable event)

Derecho de familia

  • unión de hecho (nonmarital union; domestic partnership)
  • pareja de hecho (nonmarital/unmarried couple)
  • guarda de hecho (de facto guardianship)

Derecho de sociedades

  • comunicación de hechos relevantes (notice/disclosure of material events)

Derecho contable

  • hechos posteriores al cierre (events after the reporting period)

Source: Rebecca Jowers. Léxico temático de terminología jurídica español-inglés. Valencia: Tirant lo Blanch, 2015.

“Entertain” Used in Legal Contexts

Common Words with Uncommon Legal Meanings

In everyday English “entertain” is most often associated with providing amusement or with offering hospitality to a guest. But as a verb, “entertain” has the additional meaning of “to bear in mind” or “to take under consideration,” and in legal contexts means “to give judicial consideration to” (Black’s). Thus “the court entertained the motion for continuance” indicates that the judge considered the party’s request for a delay (but may or may not have decided to grant it). Here are a few examples of how “entertain” is used in this context:

  • In no event shall any judge entertain such motion if it be made after the making of an opening statement by counsel for plaintiff.
  • Court finds that it cannot entertain the case because there was no dispute between the parties on the date when the application was filed.
  • The judge will not entertain any written discovery motions until the Court has been provided with an opportunity to informally mediate the parties’ dispute.
  • In the absence of leave from an appellate court, a trial judge lacks jurisdiction to entertain a motion while judgment is pending on appeal.

False Friends: When autor is not an “author”

Oh, no! False Friends

autor; author / autoría; authorship

Autor and “author” are obviously cognates when they describe the creator of a literary or artistic work: el autor de la novela (“the author of the novel”). Thus, for example, the expression derechos de autor refers to “copyright,” while derechos morales de autor are an author’s “moral rights.” In this context, autoría is indeed “authorship” (the fact of having authored or created a literary or artistic work), coautoría denotes “co-authorship,” and coautores are “co-authors.”

In contrast, in Spanish criminal law contexts el autor (de un delito) is the “principal” or “perpetrator” of a crimal offense. A distinction is often drawn between the autor material or ejecutor (the person who actually commits the offense) and autor intelectual (the “brains” or “mastermind” behind a crime). Likewise, an autor mediato uses an innocent third party (for example, a minor or mentally incompetent person) as an instrument to execute a crime. In this context, autoría refers to the fact of being directly responsible for the perpetration of a crime, while coautoría denotes the commission of a crime by two or more principals who are, thus, coautores (“co-principals” or “co-perpetrators”) of the offense.

“Legal” Verbs and Prepositions (Criminal Procedure)

Legal English for Spanish Speakers

What’s the right preposition for these “crimpro” verbs??

1. The police suspected Mr. X ____ having committed a crime; indeed they believed they had enough evidence________ him to accuse him _____ committing burglary.

2. After the investigation, the prosecutor brought charges _______ Mr. X, who would be charged ________ two counts of burglary.

3. He was then arrested ______ burglary and taken _______ custody.

4. He was arrested _______ a charge ______ burglary and brought _______ the judge.

5. While ______ arrest Mr. X did not confess _____ the crime, but rather he pleaded not guilty _____ the charges filed ________ him.

6. When he appeared ______ court, the judge ordered that Mr. X be released ________ bail pending trial, during which he would be prosecuted and tried _______ burglary.

7. The arresting officer testified _____ Mr. X at trial, while his defense counsel defended him _________ the charges.

8. The prosecution was prevented ______ introducing illegally-obtained evidence ______ the proceedings.

9. After retiring ____ the deliberations room, the jury passed verdict _______ the accused.

10. The jury found Mr. X guilty ________ charged.

11. In summary, Mr. X was finally convicted ________ burglary and was sentenced ________ ten years in prison.

12. After serving four years of his ten-year sentence, Mr. X was released _________ prison and placed ______ parole.

Answers:
  1. of; against; of
  2. against; with
  3. for; into
  4. on; of; before
  5. under; to; to; against
  6. in; on; for
  7. against; against
  8. from; during
  9. to; on/upon
  10. as
  11. of; to
  12. from; on

Translating Spanish Criminal Procedure: actor civil

CRIMINAL L

In Spanish criminal procedure actor civil refers to a party to a criminal proceeding who is seeking compensation for damages for civil liability arising out of the criminal act being tried. In Anglo-American jurisdictions claims for compensation for damages arising from criminal offenses are typically filed in a separate civil suit and, thus, the role of the actor civil in the Spanish criminal process may often be unclear to English-speaking audiences. In brief, in Spain claims for compensation for damages arising during the commission of a crime (reclamación de la responsabilidad civil derivada de la comisión de un delito) are usually tried simultaneously with the prosecution of criminal defendants during criminal proceedings. Actor civil designates the party who enters an appearance in a criminal proceeding to file a claim for damages in what amounts to a civil liability action conducted simultaneously with (or within) a criminal procecution.

Thus, civil and criminal liability may be determined in the same proceeding if the actor civil enters an appearance and asks to be acknowledged as a party to the criminal proceedings as a plaintiff claiming damages based on the same incident for which a conviction for criminal liability is being sought (la parte solicita que se la tenga por personada en el procedimiento en calidad de actora civil). And in perhaps most cases the victim and and person seeking civil redress are the same.

Actor civil has often been rendered literally as “civil plaintiff” or “civil claimant,” translations that perhaps fail to reflect the fact that the expression actually denotes a party to a criminal proceeding. And, indeed, since this “civil action within a criminal trial” concept will perhaps be foreign to English-speaking audiences, actor civil may require a more detailed descriptive translation such as “party claiming civil damages in a criminal proceeding.” In other respects, the civil claim heard during a criminal trial is often referred to as a proceso civil acumulado, precisely because it is, in effect, a civil action joined or consolidated with (within) a criminal procecution.

Read more here: Víctor Moreno Catena and Valentín Cortés Domínguez. “El llamado ‘actor civil’ en el proceso penal.” Derecho Procesal Penal. Valencia: Tirant lo Blanch, 2005, p. 125 ff.