Terminology of Testamentary Gifts (“devise,” “bequest,” “legacy”)

testamentary terms

Translators of English-language wills are often puzzled by the formulaic expression “I give, devise and bequeath,” used when specifying how a testator’s estate should be divided upon his death. Is the expression redundant, or would one of the three verbs actually suffice?

Strictly speaking, a “devise” (verb: “to devise”) is a testamentary gift of real property (bienes inmuebles), the beneficiary of which is known as a “devisee.” In contrast, a “bequest” (verb: “to bequeath”) is a testamentary gift of personal property (bienes muebles), often excluding money. Thus, “devise” may be translated as legado de bienes inmuebles, while “bequest” may be rendered as legado de bienes muebles. In modern American usage “devise” and “bequest” are often used interchangeably, although the distinction largely persists in English usage. “Legacy” is often thought to more properly refer to a testamentary gift of money, although the term is likewise widely used synonymously with “bequest” to denote any gift of personal property. The beneficiary of a legacy is a “legatee.” Devises, bequests and legacies may all be equally described as “testamentary gifts.”

*This may be due, in part, to the fact that the Uniform Probate Code uses “devise” to denote both real and personal property. Its Section 1-201 General Definitions (10) states that “‘Devise,” when used as a noun means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.”

(Photo credit: website of Sánchez-Gago, Vieira & Gallego Abogados, León, España)

 

Confusing Terms: “breach,” “default,” “infringement,” “violation,” “infraction”

Although these nouns may be considered legal synonyms that are very close in meaning, they are rarely interchangeable when used in standard expressions (frases hechas) in specific contexts. Here are a few examples of the most common expressions in which they appear (there are many others!):

Breach: In contract law, “breach of contract” denotes incumplimiento contractual and is synonymous with “nonperformance” or “failure to perform.” Breach may be described as a “material breach” (incumplimiento grave) or “partial breach” (incumplimiento parcial), and it is often possible to “cure (or) remedy a breach of contract” (subsanar el incumplimiento contractual). In this context “breaching party” denotes the parte incumplidora, while “non-breaching party” is the parte cumplidora.” In contrast, in criminal or administrative law the expression “breach of the peace” refers to alteración del orden público while, in general, “breach of trust” denotes abuso de confianza. In other contexts “breach” may sometimes be rendered as quebrantamiento, as in the expressions “breach of duty” (quebrantamiento del deber) or “prison breach” (quebrantamiento de prisión), also called “breach of prison” or “prison breaking.”

Default: Like “breach,” “default” can denote incumplimiento contractual (“contractual default”). In this case, “defaulting party” denotes the parte incumplidora, while the “nondefaulting party” is the parte cumplidora.” In the context of civil procedure, “default” may refer to the nonappearance of a defendant in court (incomparecencia del demandado) or to his failure to respond to a complaint (demanda). In this instance, “to declare in default” is declarar en rebeldía, “default proceeding” is juicio en rebeldía, and “default judgment” or “judgment by default” is sentencia dictada en rebeldía. In banking law and the law of obligations in general, “default” has the additional meaning of “failure to pay a debt when due” (mora). In that sense “to be in default” (which may also be expressed as “to be in arrears”) is estar en mora, while the expression “default interest” refers to intereses moratorios, and a “default debtor” is a deudor en mora or deudor moroso.

Infringement: “Infringement” is frequently used in the context of intellectual property law to denote interference in an owner’s exclusive rights in a patent, trademark or copyright. The term is often rendered in Spanish as violación, as in “patent infringement” (violación del derecho de patente), “trademark infringement” (violación del derecho de marca) or “copyright infringement” (violación de derechos de autor).

Violación: “Violation” is used generically to denote general contraventions of law or rights and is often rendered as vulneración: “violation of the law,” (vulneración de la ley); “violation of constitutional rights,” (vulneración de los derechos constitucionales). In other respects, the expression “traffic violations” may denote lesser traffic offenses (faltas de tráfico).

Infraction: Similarly, “infraction” often refers to petty offenses and minor contraventions of rules or local ordinances and, indeed, there may be quite a bit of overlap with the term “violation”. In many US jurisdictions lesser violations of law that were previously classified as criminal offenses have been decriminalized and are now known as “infractions.” The most common are “traffic infractions” (infracciones de tráfico) for which the penalty is usually a fine, but not incarceration. Depending on local law, other civil infractions might include smoking in no-smoking areas, littering or violation of noise ordinances, among many others.

Confusing Terms: expressions with instancia

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 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., the “court where an action is initiated and first heard” (Black’s Law Dictionary), which is not necessarily a first instance or trial court. And 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 and 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 as “civil trial court.”

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 civil law countries. Nevertheless, I have never been able to find this literal rendering used in any truly Anglo-American legal source (US or UK government or court websites, etc.). It’s always used 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, 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 those 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).

Are cohecho and soborno the same?

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Cohecho and soborno are synonyms that can both usually be appropriately rendered as “bribe” or “bribery,” but in Spanish criminal law there is an important difference. Soborno is a generic term for “bribery” or a “bribe,” sobornante being the person who offers a bribe (“briber;” “bribe-giver”), and sobornado the person who takes or accepts a bribe (“bribee” or “bribe-taker”). In contrast, cohecho is a criminal offense (one of the Delitos contra la Administración Pública) specifically involving bribery of a public official or civil servant (autoridad o funcionario público). In that regard, cohecho is defined in the Criminal Code as solicitar o recibir dádiva o presente o aceptar ofrecimiento o promesa para realizar una acción u omisión constitutivas de delito u otro acto injusto (soliciting, receiving or accepting compensation or gifts or the offer or promise thereof in exchange for doing or refraining from doing something  constituting a criminal offense or other unfair conduct). A distinction is made between cohecho activo (offering a bribe to a public official), and cohecho pasivo (acceptance of a bribe by a public official). Spanish criminal law likewise distinguishes between cohecho propio (bribery in which in exchange for the bribe the bribee commits acts constituting a criminal offense) and cohecho impropio (bribery in which in exchange for the bribe the bribee commits acts that are not prohibited by law and that may simply fall within the official’s normal duties).

Although cohecho is sometimes associated with judges, the Spanish Criminal Code likewise specifically mentions jurors, arbitrators and expert witnesses among the persons included in this category of offense (jurados, árbitros, peritos, o cualesquiera personas que participen en el ejercicio de la función pública). Thus, if a public official accepts a bribe he is guilty of the criminal offense of cohecho while bribery involving private individuals might simply be referred to as soborno.

Cohecho is sometimes translated as “corruption,” a term that is perhaps too broad. Indeed, in many Anglo-American jurisdictions “corruption” and “corruption offenses” are umbrella terms that include not only bribery (cohecho), but also other corrupt practices committed by public officials such as embezzlement (malversación), misappropriation (apropiación indebida) or influence peddling (tráfico de influencias), among others.

Vocabulary recap:

  • cohecho; soborno—bribe; bribery
  • cohecho activo—bribing; offering a bribe
  • cohecho pasivo—soliciting/accepting/receiving/taking a bribe
  • sujeto activo del cohecho; cohechador activo—briber; bribe-giver
  • sujeto pasivo del cohecho; cohechador pasivo—bribee; bribe-taker

Read more here.

Confusing Terms: Criminal Defamation

Many confusing terms in legal Spanish and legal English are simply legal synonyms that are not always clearly distinguishable, often making it necessary to learn how each one is used in a specific context or in set phrases (frases hechas). Some may be interchangeable; others are limited to use in specific contexts. Those highlighted in this blog are ones that I have seen confused in translation or that my students of Legal English and lawyer clients have found most difficult to distinguish.

injurias; calumnia; slander; libel

These terms denoting different types of defamation (difamación) are easily confused. Article 208 of the Spanish Criminal Code defines injuria as acción o expresión que lesiona la dignidad de otra persona, menoscabando su fama o atentando contra su propia estimación (action or expression that injures the dignity of another, damaging his reputation or undermining his self-esteem). Injurias constitute a criminal offense when they are made with the knowledge that they are false or with reckless disregard for the truth (cuando se efectúan con conocimiento de su falsedad o con temerario desprecio hacia la verdad). In common law jurisdictions “slander” and “libel” are the two principal types of defamation, slander being spoken defamation (“a defamatory assertion expressed in a transitory form, especially speech”*), while libel is written defamation, or defamation preserved in some permanent form (“a defamatory statement expressed in a fixed medium, especially in writing”*). Thus libel is defamation expressed in writing, but also in other fixed mediums (print, pictures, signs, effigies, etc.). The two concepts may perhaps be distinguished in Spanish as injurias vertidas de palabra (slander) and injurias vertidas por escrito (libel).

Calumnia is a specific type of defamation defined in Article 205 of the Criminal Code as imputación de un delito hecha con conocimiento de su falsedad o con temerario desprecio hacia la verdad (accusing someone of a criminal offense knowing that the accusation is false or with reckless disregard for the truth). “Calumny” (a false charge or imputation*) is not often used in modern criminal codes and, thus, since the distinction between injurias and calumnia is not readily made in common law jurisdictions, calumnia may perhaps be best translated descriptively as the “false accusation of a crime” or the “wrongful accusation of a criminal offense.”

And perhaps the most important aspect of the above is to note that in Spain (and in many Spanish-speaking jurisdictions) injurias and calumnias are both criminal offenses, while in common law countries slander and libel are generally torts. Thus, when speaking of the two Spanish concepts collectively it may perhaps be more accurate to describe injurias and calumnias in English as forms of “criminal defamation.”

*Black’s Law Dictionary, 8th ed.

Confusing Terms: inviolabilidad; inmunidad; aforamiento

Many confusing terms in legal Spanish and legal English are simply legal synonyms that are not always clearly distinguishable, often making it necessary to learn how each one is used in a specific context or in set phrases (frases hechas). Some may be interchangeable; others are limited to use in specific contexts. Those highlighted in this blog are ones that I have seen confused in translation or that my students and lawyer clients have found most difficult to distinguish.

inviolabilidad; inmunidad; aforamiento

In the context of parliamentary practice, these terms are often confused because all three denote types of parliamentary privileges (prerrogativas parlamentarias). Inviolabilidad and inmunidad are both types of parliamentary immunity, but refer to two very different privileges enjoyed by Spanish senadores and diputados. Inviolabilidad refers to “immunity (or) non-liability for opinions expressed in the exercise of their duties” (inviolabilidad por las opiniones manifestadas en el ejercicio de sus funciones). In contrast, inmunidad refers to “criminal immunity” or “immunity from arrest and prosecution.” In that regard, members of parliament may only be arrested if apprehended in the actual course of committing a crime (sólo podrán ser detenidos en caso de flagrante delicto), and they cannot be subjected to a criminal investigation or prosecuted without the prior authorization of their respective chambers of parliament (no podrán ser inculpados ni procesados sin la previa autorización de la Cámara respectiva). In that event, a suplicatorio, i.e., an application to lift a member of parliament’s immunity (levantar la inmunidad) must be submitted to the Congreso de Diputados or Senado, and may be granted or denied (being referred to as concesión o denegación del suplicatorio).

To add to yesterday’s blog entry, in this context, aforamiento refers to the fact that, if members of parliament are prosecuted they have the privilege of being tried by the criminal division of the Supreme Court (Sala Segunda del Tribunal Supremo), rather than by a lower criminal trial court. In that regard, members of autonomous community parliaments would be tried by the Superior Court of Justice (Tribunal Superior de Justicia) of their respective community. In effect, aforamiento (or the fact of being aforado) implies being subject to a different forum (fuero) or venue than would be ordinary citizens. Thus, here aforamiento may perhaps be rendered as “jurisdictional privilege,” while aforados are “persons (in this case, members of parliament) who enjoy jurisdictional privilege.”