Common Words with Uncommon Legal Meanings: “Information”

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

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”?

“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

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 certaprinciple 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

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

“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.”

What is beneficio de inventario?

One of the often-confused concepts in the Spanish law of succession is beneficio de inventario, an expression that has sometimes been translated literally as “benefit of inventory” or “inventory benefit,” renderings that do not clarify its true meaning. An initial key to understanding the term is to note that under Spanish inheritance law heirs (herederos) inherit a título universal, i.e., they do not only receive assets from the decedent’s estate (as does a legatee–legatario), but they also assume all of the deceased’s liabilities.

In that regard, an heir can decide to accept an inheritance unconditionally (aceptación pura y simple), or to accept it a beneficio de inventario. The difference is quite significant. Upon an unconditional acceptance of an inheritance, the heir inherits both the decedent’s assets and liabilities, while his own personal estate immediately becomes commingled with the inherited estate. Thus, if the assets of the inherited estate do not suffice to pay the inherited estate’s debts, an heir who accepts an inheritance unconditionally must use his own assets to satisfy those debts.

In contrast, if the inheritance is accepted a beneficio de inventario, an inventory of the decedent’s assets will be conducted and the heir will have the right to limit his liability to the deceased’s creditors to the amount received in inheritance (facultad del heredero de limitar su responsabilidad ante los acreedores del difunto al montante de la herencia recibida). An inventory is conducted after notifying the creditors and legatees who may be present if they deem it to their advantage (formación del inventario con citación a los acreedores y legatarios para que acudan a presenciarlo si les conviniera). And the decedent’s estate must be kept separate from the heir’s estate until the debts of the decedent’s estate have been paid (necesidad de mantener separados el patrimonio hereditario y el patrimonio del heredero hasta que se hayan satisfecho las deudas de la herencia).

Another related expression is derecho a deliberar, which in this context refers to an heir’s right to deliberate whether or not to accept an inheritance. And, while we’re looking at strange expressions, adir la herencia simply means “to accept the inheritance,” adir being defined as aceptar la herencia tácita o expresamente (DLE). The noun here is adición: adición de la herencia (acceptance of the inheritance).

Source: Carlos Lasarte. Principios de Derecho civil VII: Derecho de sucesiones. Madrid: Marcial Pons, 3ª edición, 2003, pp. 343-355.

Mistranslation: “Property Law” is not Derecho de propiedad

Although this mistranslation appears in several Internet sources, these two expressions are definitely not equivalent. We’ll look at this in more detail below, but the first step is to note that “property law” is a broad area of law that generally corresponds in Spanish to what is referred to as Derecho de cosas (property law) or derechos reales (rights in property). In contrast, propiedad, also known as dominio (ownership) is only one aspect of this likewise broad area of derechos reales.

To illustrate this, it’s helpful to compare the partial content of a typical US property law course syllabus with part of a Spanish Manual de Derecho Civil that deals with Derecho de cosas or derechos reales:

Property Law Course Syllabus:Manual de Derecho de cosas (or) derechos reales:
–The Nature of Property
–Acquisition of Property
–Adverse Possession
–Acquisition by Gift
–Estates in Land: fee simple, life estates, defeasible estates and future interests
Concurrent Ownership
–Landlord-Tenant Relationships
–Real Estate Contracts; Deeds
–Land Registration
–Eminent domain
–Personal Property and Bailments
–(etc.; etc.)
–Adquisición de los derechos reales (ocupación; accesión; usucapión)
Propiedad; copropiedad
–Derecho de uso
–Derecho de habitación
–Derecho de superficie
–Derechos reales de garantía (prenda; hipoteca
–Derechos de adquisición preferente (tanteo; retracto)
–Derecho registral inmobiliario
–(etc.; etc.)

As shown above, ownership (propiedad) is only one of many aspects of “property law” covered in the US syllabus in the section concerning “fee simple*” (absolute ownership, similar to dominio pleno in Spanish law), along with the section on “concurrent ownership” (copropiedad).

As likewise shown above in the Spanish example, propiedad (ownership) is only one of the many rights in property (derechos reales), and is addressed in Spanish civil law textbooks under propiedad and copropiedad.

Thus, Property Law cannot be translated as Derecho de propiedad. But the specific subjective right of derecho de propiedad (with a lowercase “d”) is, among many others, one of the principal rights (ownership) that one may have in property (cosas; bienes). In that regard, propiedad is defined in the Spanish Civil Code as el derecho de gozar y disponer de una cosa, sin más limitaciones que las establecidas en las leyes (art. 348 CC).

(Recap: property law = Derecho de cosas; Régimen jurídico de los derechos reales).

In case they may be of interest, here are links to other blog entries dealing with several aspects of derechos reales and property law:

*Fee simple—the greatest possible estate in land, wherein the owner has the right to use it, exclusively possess it, commit waste upon it, dispose of it by deed or will, and take its fruits. A fee simple represents absolute ownership of land… (West’s Encyclopedia of American Law)

Legal English: confusing terms (advice; advise; advisement)

These look-alike terms are sometimes confused, even by native English speakers. The first two are not necessarily legal terms, but do often appear in legal contexts. “Advice” (consejo) is always a noun: “He gave me some good advice.” “United States Supreme Court judges are appointed by the President with the advice and consent of the Senate.” In contrast, “advise” is a verb meaning “to counsel;” “to give advice” (aconsejar): “The defendant was advised by his attorney not to testify during the trial.” As a verb “advise” can also mean “to inform” (avisar): “Please advise me when you are ready.”

In other respects, “advisement” denotes “careful consideration,” and judges often indicate that they will “take a matter under advisement” when they postpone making a decision until a later date. Thus, the expression “I will take this matter under advisement” implies that the matter in question will be given careful consideration and that a decision will be forthcoming.

Legal False Friends: practicar vs. “practice”

In legal contexts, practicar cannot always be translated literally as “to practice.” In procedural law, for example, practicar la prueba refers to “examining evidence,” while practicar la prueba testifical is specifically the “examining (or) questioning of witnesses” or “taking witness testimony.” Likewise, practicar la notificación de la demanda is one of the ways to express “service of process.”

In tax law, practicar retenciones denotes an employer’s “withholding taxes” from an employee’s paycheck, while practicar reducciones en la declaración del IRPF means “to take deductions on a personal income tax return.” With regard to public registers, practicar la inscripción registral refers to “recording,” “entering” (or) “making an entry” on a register. And the expression practicar un aborto denotes “performing an abortion.”

Similarly, “practice” cannot always be translated as practicar. A common example is to “practice law,” which in Spanish is ejercer la abogacía. In this context the expression “attorney-at-law” denotes an abogado en ejercicio, one who has a “law practice.” And a lawyer who is in business for himself (abogado con despacho propio) is often said to have a “solo practice” and is known as a “solo practitioner.”