Author: rebeccajowers

Multiple Meanings of cuota

rebeccajowers Multiple Meanings

Legal Terms with Multiple Meanings

Cuota has no simple correspondence in English and often can’t be translated simply as “quota.” The term may denote “membership fees” or “dues” as in cuota de afiliación or cuota de socio (“membership fee”) or cuota sindical (“union dues”). In the context of social security law, cuota de cotización a la seguridad social is “social security contribution,” and refers either to a worker’s social security contribution (cuota personal) or an employer’s social security contribution (cuota patronal/empresarial). In criminal law contexts, in a day fine system (sistema de días-multa), cuota diaria is a “day-fine unit,” while in the context of tax law cuota often refers generically to “taxes due” as in cuota tributaria, cuota del gravamen or cuota del impuesto. Thus, in Spain deducciones en la cuota are “tax credits” and cuota a devolver denotes “tax refund.” When referring to a lawyer’s contingency fee, the expression is cuota litis, and pacto de cuota litis is a “contingency fee agreement” (or a “no win, no fee agreement”). And the expression cuota de mercado is simply “market share.” Finally, in many expressions cuota may certainly be translated directly as “quota” as in cuota de producción (“production quota”) and cuota de importaciones (“import quota”).

Confusing Terms: expressions with instancia

rebeccajowers Confusing Terms

Legal Synonyms,Confusing Terms(what's the difference between..._)

tribunal de primera instancia; tribunal competente en primera instancia; tribunal competente en (primera y) única instancia; tribunal de última instancia; juzgado de primera instancia

These expressions are indeed confusingly similar, but are definitely not interchangeable. Tribunal de primera instancia is a general term for any court of first instance and can probably be best rendered in English simply as “trial court.” In contrast, tribunal competente en primera instancia denotes a “court of original jurisdiction,” i.e., a “court where an action is initiated and first heard” (Black’s Law Dictionary), which is not necessarily a first instance or trial court. Thus, competencia en primera instancia is “original jurisdiction.” As an example, in the event that a deputy or senator (diputado o senador) of the Spanish Parliament (Cortes Generales) were accused of a criminal offense, he would not be tried by a criminal first instance (or) trial court, but rather would have the privilege (called aforamiento) of being tried by the Criminal Division of the Supreme Court (Sala Segunda, de lo Penal, del Tribunal Supremo). Indeed, the Supreme Court is the “court of original jurisdiction” (tribunal competente en primera instancia) for trying Spanish deputies and senators for criminal offenses, or expressed otherwise, the Supreme Court has “original jurisdiction” (competencia en primera instancia) to hear criminal cases against deputies and senators.

If a court is described as competente en primera y única instancia (or simply en única instancia), it is a “court of first and last resort,” having original jurisdiction to first hear a case, but whose decisions are not subject to appeal. Tribunal de última instancia is a “court of last restort,” a court that hears the final appeal of a case. And, finally, in Spain juzgado de primera instancia is a specific type of court, being the first instance court for civil proceedings. In that regard, juzgado de primera instancia may be appropriately translated simply as “civil trial court.”

Multiple Meanings: pago al contado

rebeccajowers Multiple Meanings

Legal Terms with Multiple Meanings

When pago al contado refers to pago en dinero contante, it may be appropriately  translated as “cash payment” or “payment in cash.” But often the expression actually denotes making “immediate payment,” as opposed to pago a plazos (“payment in installments”). Thus, in this context a pago al contado can be made in cash (en efectivo), by credit or debit card (con tarjeta de crédito o débito) or by bank transfer (por transferencia bancaria). As an example, in my work as a freelance translator, when billing my clients my invoices show “contado” as my payment terms. Rather than expecting payment in cash, this denotes my preference for immediate payment, something that I may not get but, hey, as they say, “wishing is free.” In other respects, “payment in cash” may be rendered as pago en efectivo, pago en numerario or pago en metálico.

 

Terminology Sources: “Legal Language” by Peter M. Tiersma

rebeccajowers Terminology Sources

Terminology Sources

For anyone interested in Legal English, Peter Tiersma’s book on “Legal Language” (University of Chicago Press, 2000) is an absolute must. After tracing the origins and development of Legal English (providing sample texts in Anglo-Saxon and Law French), he then examines the nature of legal language as used by both lawyers and in the courtroom. Another remarkable source of information on legal language is the late Professor Tiersma’s webpage, part of which is still maintained and made accessible to the general public by the Loyola Law School of Los Angeles (http://www.languageandlaw.org/).

Mistranslations? cuantía del litigio

rebeccajowers Mistranslations?

Is this really a mistranslation_

Cuantía del litigio and similar expressions such as cuantía de la demanda denoting the valor del objeto del proceso have sometimes been translated literally as “amount of the claim,” “amount claimed in the complaint,” or “amount of the litigation.” But in US civil procedure there are specific terms that express this concept including “amount in controversy” and “jurisdictional amount,” both of which denote the monetary amount claimed in a lawsuit that often determines which court will have jurisdiction to hear a given case. In this context an expression such as competencia por razón de la cuantía refers to “jurisdiction based on the amount in controversy.” Cuantía was likewise used in this context in the former Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil de 1881) in expressions such as juicio de menor cuantía (“small claims action/proceeding”) and juicio de mayor cuantía (“large claims action/proceeding”). In British English the amount in controversy is also often referred to as the “quantum” or “amount in dispute.”

Español Jurídico: What is competencia funcional ?

rebeccajowers Español jurídico

Legal Spanish for Translators

Competencia funcional has sometimes been rendered as “appellate jurisdiction,” and this may be correct in many contexts. However it should be noted that this definition is incomplete and may prompt a miscue or result in a mistranslation, since competencia funcional is actually a much broader concept, denoting the court of competent jurisdiction in each step in a legal proceeding, and not only at the appellate stage. Thus competencia funcional may refer not only to a court’s jurisdiction to hear appeals arising from a specific case (i.e., its “appellate jurisdiction”), but also to its jurisdiction to hear interlocutory motions (incidentes procesales) and enforcement proceedings (ejecución de sentencias). As explained in Thompson-Aranzadi’s Diccionario Jurídico,* “las normas de competencia funcional determinan qué juez o tribunal conocerá de los incidentes que se susciten en el proceso, de los recursos que se interpongan contra las sentencias y de la eventual ejecución de esas sentencias.”

*Juan Manuel Fernández Martínez, Coord. Diccionario Jurídico. Cizur Menor (Navarra): Thompson-Aranzadi, 2004.

What is silencio administrativo ?

rebeccajowers Confusing Terms

what IS SILENCIO ADMINISTRATIVO

Silencio administrativo (whether positivo or negativo) is frequently translated literally as “administrative silence,” and this may perhaps be understood by “insiders” from jurisdictions in which the expression is used. Nevertheless, I have never been able to find this literal rendering in any truly Anglo-American legal source (US or UK government or court websites, etc.). It’s always found in translations from Spanish or in English texts that explain what “administrative silence” is by rendering it literally. In fact, it is often obvious that many Internet articles devoted to “administrative silence” were originally written in Spanish and then simply run through Google Translate.

So what is silencio administrativo and, more importantly, how can the concept be reasonably rendered in English? Briefly, silencio administrativo denotes a governmental agency or other authority’s failure to respond to a request, petition or appeal, and that failure to respond constitutes a decision in itself: in situations governed by silencio administrativo positivo, failure to respond is deemed a positive response, while under silencio administrativo negativo failure to respond is tantamount to a “no.”

In view of the above and depending on the context, silencio administrativo positivo may be translated as “constructive grant/consent/approval, etc.,” while silencio administrativo negativo may be rendered as constructive denial/rejection/refusal, etc., since this is really what these expressions mean. Here’s a simple example with a possible translation: Una vez vencido el plazo de contestación que las normas establezcan para los expedientes de autorización, se entenderá otorgado el mismo por silencio administrativo positivo (Once the legally-established term for responding to applications for authorization has expired, failure to respond shall be deemed a constructive grant of authorization).

False Friends 101: A Court’s Opinion is not its Opinión

rebeccajowers False Friends

False Friends 101

Judgments rendered by Anglo-American courts are often referred to as “opinions.” In this context “opinion” is “a court’s written statement explaining its decision in a given case, usually including the statement of facts, points of law, rationele and dicta” (Black’s Law Dictionary, 8th. ed.). I’ve recently seen several Spanish texts that used “opinión” to refer to the decision of a court that would have perhaps been better described as either its “sentencia” or “fallo.” Other related expressions worth noting include

  • separate opinion (voto particular)
  • dissenting opinion (voto particular disidente/discrepante)
  • concurring opinion (voto particular concurrente)
  • judge delivering the opinion of the Court (magistrado ponente)
  • “It is the opinion of this Court…” (“Es el parecer de esta Sala/de este Tribunal…”)

In other respects, dictamen no vinculante is an “advisory opinion” and dictamen pericial is an “expert witness opinion,” while what is widely known in civil law countries as doctrina can be appropriately rendered as “academic opinion” (or also as “legal scholarship,” “scholarly writing” or perhaps “the writings of law professors and legal scholars”).

Latinismos: What is a subpoena?

rebeccajowers Latinismos

Latin for Lawyers

A previous blog post examined the meaning of “summons” and the contexts in which it can be translated as either citación or emplazamiento. But what about the related Latin term “subpoena”? “Sub poena” is Latin for “under penalty” (bajo pena), and a subpoena is an order to appear in court in which failure to comply will incur some form of punishment. “Subpoena” (a secas) generally denotes a “subpoena ad testificandum,” an order compelling a witness to appear in court to testify, specifying the time and date on which to do so. After the 1997 Civil Procedure reform, in England and Wales a subpoena is now known as a “witness summons.” A second form of subpoena, a “subpoena duces tecum” (“duces tecum” = “bring with you”) orders a witness to appear in court with documents, records or other items of evidence of interest in an ongoing trial.

Any translation of subpoena must reflect the fact that there will be a penalty for failure to comply with the terms of that order. Thus possible Spanish renderings of subpoena include citación con apercibimiento, citación coercitiva and citación intimatoria.

 

Capsule Vocabularies: Terminology of Spanish Divorce Proceedings

rebeccajowers Capsule vocabularies

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Although Spain has what may be described as “no fault divorce” (divorcio no causal), and one spouse needn’t allege grounds for divorce (causas de divorcio) against the other, divorce proceedings follow ordinary civil procedure. Thus in contested divorces (divorcios contenciosos) the spouse initiating the proceeding (the demandante) “sues” the other spouse (the demandado) by filing a petition for divorce (interponiendo demanda de divorcio).

Translation mistakes may result from the failure to recognize that the terminology of civil procedure is not commonly used in divorce proceedings in Anglo-American jurisdictions where specific, less “contentious” terms are preferred in this and in other family proceedings. In that regard it should be noted that a demanda de divorcio is often not a “complaint” or “claim,” but rather a “petition for divorce.” The spouse initiating the divorce is a “petitioner,” rather than a “plaintiff” or “claimant” (demandante).” Likewise, the spouse against whom divorce is sought is called the “respondent,” rather than a “defendant” (demandado). And in this context estimar la demanda de divorcio would be translated as “to grant a divorce,” while sentencia de divorcio is widely known as a “divorce decree.”

Some of the basic vocabulary concerning divorce proceedings in Spain is provided below:

  • divorcio—divorce
  • divorcio judicial—judicially-decreed divorce
  • causas de divorcio—grounds for divorce
  • divorcio causal; sistema causalista—fault-based divorce
  • divorcio no causal; divorcio sin alegar causa—no-fault divorce
  • divorcio contencioso—contested divorce; defended divorce (UK)
  • divorcio no contencioso—uncontested divorce; undefended divorce (UK)
  • divorcio de mutuo acuerdo—divorce by mutual consent
  • “divorcio exprés”—expedited divorce*
  • demanda de divorcio—divorce petition; petition for divorce
  • demandante—petitioner
  • demandado—respondent
  • estimar la demanda de divorcio—to grant a divorce
  • sentencia de divorcio—divorce decree

*Informal expression denoting a mutually-agreed expedited no-fault divorce proceeding introduced in the Ley 15/2005 divorce reform, requiring no separation period and that may be filed after only three months of marriage.

Source: Rebecca Jowers, Léxico temático de terminología jurídica español-inglés. Madrid: Tirant lo Blanch, 2015, pp. 720-721.