Confusing Terms: Translating desleal, deslealtad and infidelidad

literal translation just won't work

In legal contexts desleal, deslealtad and infidelidad are not always translated literally as “disloyal,” “disloyalty” or “infidelity.” As examples, competencia desleal refers to “unfair competition,” while in corporate law contexts administración social desleal o fraudulenta may denote some aspect of “corporate mismanagement or fraud.” In that regard, directors have a deber de lealtad (“fiduciary duty”) to act solely in the interest of their company, defined in the DEJ as la obligación de desempeñar el cargo de administrador atendiendo únicamente a los intereses de la sociedad. In this sense, deslealtad societaria refers to a director’s “breach of fiduciary duty” to the company.

Deslealtad also appears in the expression deslealtad profesional, which in Spain refers specifically to “professional misconduct” on the part of lawyers and procuradores who, for example, by action or omission prejudice their clients, or who defend interests contrary to those of their client.

The term infidelidad is also used in Spain in criminal law contexts in which it would be more accurately rendered as “breach,” rather than literally as “disloyalty.” Two specific offenses in which this might be the case are infidelidad en la custodia de presos (perhaps expressed as “breach of duty [or] misconduct in the custody of prisoners”) and infidelidad en la custodia de documentos y violación de secretos (which might be rendered as “breach of duty in the custody of documents and disclosure of privileged information”).

Legal Look-alikes: derecho de audiencia vs. “right of audience”

Legal _Look-alikes_

These look-alike expressions concern two different aspects of procedural guarantees. Derecho de audiencia (also known as derecho a ser oído) is a party’s “right to be heard” in judicial or administrative proceedings. As expresed in the American Bar Association’s Model Code of Judicial Conduct, “a judge shall accord to every person who has a legal interest in a proceeding, or to that person’s lawyer, the right to be heard according to law.” The Diccionario de Español Jurídico underscores that this is a principio general del Derecho según el cual nadie puede ser condenado sin ser oído y vencido en juicio; implica dar a las partes la oportunidad de intervenir en el proceso, con independencia de que la utilicen o no.

In contrast, “right of audience” generally denotes an individual’s right to speak on behalf of another person in court and, more specifically, a lawyer’s right to appear in court to represent and defend the interests of his client. In Spain (and, generally, in Spanish-speaking jurisdictions) all lawyers normally have right of audience (i.e., the distinction between the roles of solicitor and barrister does not exist). “Right of audience” may be rendered in Spanish as derecho de actuar ante los tribunales.

Confusing Terms in Spanish-English Legal Translation: “national” isn’t nacionalista

Confusing Terms2

When recently reviewing a judgment* of the European Court of Human Rights, I realized that the Ministry of Justice’s Spanish version of that document confuses “national” with nacionalista. In English, when identifying a person’s country of origin, “national” means “citizen of:” “Paco Pérez, a Spanish national” = Paco Pérez, de nacionalidad española (or) Paco Pérez, ciudadano español, etc. In the judgment in question, the applicants were identified as “Hungarian nationals,” but appeared in the Spanish translation as nacionalistas húngaros (“Hungarian nationalists”). Perhaps this was some sort of Freudian slip, given the presence of nationalist political parties in the Basque Country, Catalonia, and elsewhere in Spain (whether the term nacionalista actually appears in the party’s name or not).

In other respects and as noted above, in Spanish contracts the ever-present de nacionalidad española is indeed used to indicate that a party to the agreement is “a Spanish national.” But the meaning may be slightly different when the parties are corporate entities rather than individuals. Empresa X, de nacionalidad española is obviously not “Company X, a Spanish national,” but rather “Company X, a Spanish corporation” or perhaps, adopting the expression often found in Anglo-American contracts, “a company incorporated under the laws of Spain.”

*Karácsony and others v. Hungary

 

Legal English Look-alikes: “bail,” “bailiff” and “bailment”

Legal _Look-alikes_

At first glance “bail,” “bailiff” and “bailment” would appear to be related terms, but actually they’re not!

“Bail” is perhaps the most easily recognizable of the three, being the English term for the fianza given by a criminal defendant to elude pretrial detention and be “released on bail” (salir en libertad con fianza*) while awaiting trial. In English we say that a judge “grants bail” (acuerda la libertad con fianza) and “fixes (or) sets bail” (fija la fianza), while the accused “posts bail (or) a bail bond” (presta fianza), and is thus granted “pretrial release” (libertad provisional). When bail is posted by a third party, a less formal expression is “to bail (someone) out of jail” is often used. Failure to comply with the terms of pretrial release is known variously as “jumping (or) skipping bail” (violar/quebrantar las condiciones de la libertad con fianza), which may result in forfeiture of the amount posted.

Bail’s look-alike “bailiff” denotes a court officer, generally in charge of maintaining order during court proceedings, but who may have other duties (depending on the jurisdiction), such as assisting a sheriff, serving process and executing court orders. Bailiffs also act as court criers, announcing the judge’s entrance in the courtroom (the famous “Oyez, oyez, oyez!” explained here). “Bailiff” is often rendered in Spanish as alguacil, a term that isn’t used in Spain where a court officer known as auxilio judicial keeps order in the courtroom when a judge requests him to do so (guarda la Sala bajo las órdenes del Juez).

And, finally, “bailment” is likewise totally unrelated to the previous two, being the English term for the Spanish contrato de depósito. The fact that these are kindred concepts is evidenced in a simple comparison of their definitions: Black’s Law Dictionary defines “bailment” as “delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract.” Similarly, as defined in the Spanish Civil Code, under a contrato de depósito, el depositante entrega una cosa mueble al depositario para su custodia y posterior restitución al depositante (a bailor delivers an item of personal property to a bailee for its safekeeping and subsequent return to the bailor).

 

*The expression that is perhaps most often seen is libertad BAJO fianza, although the term actually used in the Spanish Ley de Enjuiciamiento Criminal is libertad provisional CON fianza (arts. 505 and 539).

Confusing Terms: certificación; certificado; partida

Confusing Terms2

These three terms are all commonly used in Spain to denote “certificates” issued by the Registro Civil (“Civil Register,” “Bureau of Vital Statistics,” etc.). Thus, for example, a “birth certificate” may be variously referred to as a certificación de nacimiento, certificado de nacimiento and partida de nacimiento.

The term actually used in the Reglamento de la Ley del Registro Civil is certificación and, for example, a birth certificate is entitled “Certificación de Inscripción de Nacimiento.” Nevertheless, this and other certificates (de matrimonio, de defunción) are also called certificados in many official documents and on Spanish government websites.

Likewise, the expressions partida de nacimiento (or de matrimonio, de defunción) are widely used, albeit unofficially, to designate respectively a “birth certificate,” “marriage certificate” and “death certificate.” In that regard, partida originally denoted the entry on a church’s parish register of major life events (births, marriages and deaths) and, by extension, is often used informally to refer to data recorded on the Registro Civil. This is evident in the DLE’s definition of partida: registro o asiento de bautismo, confirmación, matrimonio o entierro, que se escribe en los libros de las parroquias o del registro civil.

Confusing Terms: Derecho de daños; delito de daños

Confusing Terms2

Derecho de daños; delito de daños

These look-alike expressions may appear to be similar in meaning, but they actually have nothing in common other than the word daños. Derecho de daños (also called Derecho de la responsibilidad civil or Derecho de la responsibilidad extracontractual, is the term widely used in Spanish law to denote what in English is called “tort law” or the “law of torts.”

In contrast, delito de daños (Código Penal, arts. 263-267) describes the criminal offense of maliciously damaging the property of another (daños en propiedad ajena). In many common law jurisdictions (US; England and Wales) this is known as “criminal damage (to property).” For example, the Criminal Damage Act 1971 in force in England and Wales defines this offense as an act commited by a person who “without lawful excuse, destroys or damages any property belonging to another, intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged.” “Vandalism” and “malicious mischief” are other terms that describe aspects of what in Spain are defined as delitos de daños.

Español jurídico: Distinguishing Jurisdictional Disputes

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

conflicto de jurisdicción; conflicto de competencia; cuestión de competencia

The principal difficulty in finding a suitable translation for each of these expressions lies in the fact that all three may perhaps be described in English simply as “jurisdictional disputes,” since in this context both jurisdicción and competencia are “jurisdiction” in English. In effect, in most contexts “jurisdictional dispute” may suffice for all three, but if further clarification is necessary a “descriptive translation” may be warranted.

In that regard and as used in Spain, a conflicto de jurisdicción may be described as a “jurisdictional dispute between the courts and the public administration” (conflicto entre los tribunales y la administración). In this case it must be determined whether a given decision should be adopted by a court or by a governmental agency.

 Conflicto de competencia might be translated as a “dispute between courts of different jurisdictions” (conflicto entre tribunales de distintos órdenes jurisdiccionales), such as a dispute as to whether a case should be heard in the civil or the administrative courts (tribunales civiles o contencioso-administrativos).

And cuestión de competencia might be rendered as “dispute between different courts within the same jurisdiction” (conflicto entre tribunales dentro del mismo órden jurisdiccional), such as, for example, a dispute as to whether a civil case should be heard by a lower or higher court within the civil court hierarchy.

In general, the above may sometimes categorized as either positiva or negativa, depending on whether the entities in question seek to claim or decline jurisdiction. In that regard, in a conflicto de jurisdicción positiva both the court and the governmental agency involved in the dispute claim jurisdiction (se declaran competentes) over the matter. In a conflicto de jurisdicción negativa, the two entities claim that they lack jurisdiction (se declaran incompetentes) to decide the case.

Kinship Terms in Spanish and English

Kinship Tems in Spanish and English

This is not a post on legal terminology per se, but there is so much potential for confusion with kinship terms that I thought it might be useful to reproduce two charts* below to perhaps clear up some of the most basic questions. (I also admit that after living in Spain for so many years “tío segundo” makes more sense to me than “first cousin, once removed.”)

Difference-Between-Family-and-Relatives-2

550px-Relatives_Chart_es.svg

*I would like to attribute authorship to these charts, but they appear on multiple websites, and I couldn’t find a copyright (©) on any of them.

 

 

Legal Synonyms (?): Distinguishing “transfer,” “sale,” “gift,” “conveyance” and “assignment”

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

transfer; sale; gift; conveyance; assignment

These apparent “legal synonyms” are usually not interchangeable. Here are a few of their meanings and how they are used:

In the context of property law and sales transactions in general, “transfer” is a generic term denoting different modes of disposing of property or rights in property such as a transfer by sale, gift, conveyance or assignment. “Transfer” is likewise often used specifically in the context of transferring shares (transmisión de acciones) from a “transferor” (transmitente) to a “transferee” (adquirente), and it is common to speak of the “transferability of shares” (transmisibilidad de las acciones).

“Sale” (compraventa) is likewise used to refer to many types of commercial transactions such as the sale of goods (compraventa de mercancías) or the sale of real property (compraventa de bienes inmuebles), among many others. The parties to a sales contract are the “seller” (vendedor) and “buyer” or “purchaser” (comprador).

“Gift” (donación) denotes the voluntary transfer of property without compensation from a “donor” or “grantor” (donante) to a “donee” or “grantee” (donatario).

In this context “conveyance” also refers generally to the transfer of property or property rights, but along with the variant “conveyancing,” the term is used, particularly in the UK, to denote the transfer of title to real property (bienes inmuebles). In this context “conveyancing” may be rendered as compraventa de bienes inmuebles, while “conveyancer” refers to a person who provides conveyancing services (servicios de compraventa de bienes inmuebles).The parties to a conveyance are the “buyer” and “seller” and, less often, the “vendor” and “vendee.” In insolvency proceedings or in other contexts, there may an attempt to conceal assets by transferring them to a third party, often referred to as a “fraudulent conveyance” (enajenación fraudulenta) or “conveyance in fraud of creditors” (enajenación en fraude de acreedores).

“Assignment” (cesión) likewise refers to the transfer of rights in property but is most often used in the context of intellectual property rights, as in the “assignment of a patent or trademark” (cesión de una patente o marca) from an “assignor” (cedente) to an “assignee” (cesionario). “Assignment of contract” may likewise denote the transfer of one party’s rights in a contract to a third party (often rendered as cesión de contrato or cesión de la posición contractual).

Translating Spanish-English Court Terminology

Legal Synonyms,Confusing Terms(what's the difference between..._)(1)

sala; sección; sede; cámara

division; panel; chamber; courtroom; courthouse

Sala, sección, and sede are used variously to describe the physical and organizational divisions of Spanish courts. When referring to the overall jurisdictional organization of courts, sala is perhaps best translated as “division.” For example, the Spanish Supreme Court (Tribunal Supremo) is divided into five salas (or jurisdicciones): Sala Primera, de lo Civil (“Civil Division”); Sala Segunda, de lo Penal (“Criminal Division”); Sala Tercera, de lo Contencioso-Administrativo (“Administrative Division”); Sala Cuarta, de lo Social (“Labor Division”) and Sala Quinta, de lo Militar (“Military Division”). In this context the expression la sala en pleno refers to a sitting of all of the judges in a given court division. And, thus, el pleno del tribunal or el tribunal en pleno denotes a “full court,” “en banc court” or “court en banc”, i.e., a session attended by all of the judges on a given court.

Sala can also refer to a “panel” of (usually three) judges who adjudicate cases. In this sense sala is a synonym of tribunal. Sección is likewise often used in this context to describe judges sitting in panels. In that regard and as an example, the Spanish Constitutional Court (Tribunal Constitucional) may meet en pleno (the full court of 12 judges), in two salas (half-court panels of six judges), or in four secciones (three-judge panels).

In other respects, the expression sala de gobierno refers to the panel or committee of judges (magistrados) who decide administrative and organizational matters in their respective courts (such as the Tribunal Supremo, the Tribunales Superiores de Justicia in each Autonomous Community and the Audiencia Nacional). The duties of the salas de gobierno include, among others, approving case assignment rules (normas de reparto), nominating and appointing judges pro tempore (magistrados suplentes and jueces de provision temporal), and exercising the disciplinary powers (facultades disciplinarias) vested in them in the Ley Orgánica del Poder Judicial.

Sala in the sense of sala de vistas denotes a “courtroom.” Thus, the expression Sala de Vistas de la Sala Segunda del Tribunal Supremo refers to a specific courtroom within the Criminal Division of the Supreme Court.

Although “chamber” is not often used to describe the jurisdictional or organizational divisions of US and English courts, many bilingual sources translate sala literally as “chamber,” perhaps due to the fact that it is used in several European courts in which French is an official language. For example, at the European Court of Human Rights a 7-judge panel is known as a “chamber,” while a 17-judge panel is a “Grand Chamber” (Grande Chambre in French). Likewise panels of three to five judges on the Court of Justice of the European Union are known as “chambers,” and its 13-judge panels are “Grand Chambers.”

In contrast, in Anglo-Amerian jurisdictions “chambers” (always plural) often denotes a judge’s private offices at a courthouse. Thus, an “in-chambers conference” refers to a meeting with a judge in his offices, rather than in the courtroom. By extension the Latin expression “in camera” (“in chambers”) means “in private,” and an “in camera hearing”* refers to a hearing from which the public has been excluded (audiencia a puerta cerrada) as opposed to a “hearing in open court” or “public hearing” (audiencia pública). In British English “chambers” may also denote the offices of a barrister or a group of barristers.

In other respects, in the context of parliamentary practice cámara is not “chamber,” but rather is more often rendered as “house:” cámara alta (“upper house”); cámara baja (“lower house”); Cámara de los Lores (“House of Lords”); Cámara de los Comunes (“House of Commons”), etc.

And finally, sede often denotes the physical location of a court, the “courthouse” itself and, depending on the context, the often seen expression en sede judicial may be translated as “at the court,” “in court,” “before the judge,” or simply with the adjective “judicial:” Declaró en sede judicial (he testified in court/before the judge); comparecer en sede judicial (to appear in court); determinación de responsibilidad civil en sede judicial (judicial determination of civil liability), etc. By extension, if en sede judicial means en el tribunal, then en sede policial must likewise mean en comisaría, while en sede parliamentaria denotes en el Parlamento. Although widely used in the press, this peculiar use of “en sede” has been described as a “cursilería” (Antonio Burgos, ABC, 5 July 2004) and as “abusivo y repetitivo” (Fundéu).

*With the terminology reform initiated in the Civil Procedure Act 1997, in England and Wales an in camera hearing is now known as a “hearing in private.”