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.”

Confused by European Institutions? (European Council; Council of the European Union; Council of Europe)

flag_yellow_high

These three institutions are sometimes confused in translation, Consejo Europeo often being mistranslated as “Council of Europe,” rather than as “European Council,” even in academic publications. Examples I have encountered include mistranslating Directiva xxxx/xx CE del Parlamento Europeo y del Consejo Europeo as “EC Directive xxxx/xx of the European Parliament and the Council of Europe,” or rendering the expression “cuando el Consejo Europeo empiece a adoptar medidas en codecisión con el Parlamento…” incorrectly as “when the Council of Europe begins to adopt codecision procedures with the Parliament…”.

Likewise, in the other direction, “Council of Europe” has often been confused with Consejo Europeo when translating, for example, “Council of Europe Committee of Ministers” as Comité de Ministros del Consejo Europeo (rather than Comité de Ministros del Consejo de Europa) or rendering “Publication of the Council of Europe, Strasbourg” as Publicación del Consejo Europeo de Estrasburgo. And an article entitled “The Limited Powers of the European Parliament and the Council of Europe” most likely intended to address the limited powers of the European Parliament and the European Council.

So, to sort this out…

The European Council (Consejo Europeo) and the Council of the European Union (Consejo de la Unión Europea) are both institutions of the European Union; the Council of Europe (Consejo de Europa) is not.

Briefly, the European Council (Consejo Europeo) is composed of the heads of state or government of all EU member states, together with its president (currently Mr. Donald Tusk) and the president of the European Commission (at the time of this writing, Mr. Jean-Claude Juncker). At its quarterly summits the EU Council defines the general political direction and priorities of the European Union, setting its policy agenda and adopting conclusions identifying issues to be addressed and actions to be taken.

At meetings of the Council of the European Union (Consejo de la Unión Europea) ministers of the governments of EU member states adopt laws and coordinate policies in their respective policy areas. As the main decision-making body (together with the European Parliament), the Council negotiates and passes EU laws (based on proposals from the EU Commission), develops foreign and security policy, concludes international agreements and adopts the EU budget. The Council’s presidency rotates among member states every six months. Austria currently holds the presidency until December 31, 2018.

European Council summits and Council of the European Union meetings are generally held in Brussels. Since these “councils” are easily confused, the former may be thought of as a summit of heads of state, while the latter is a meeting of government ministers in their respective areas.

In contrast to the above, the Council of Europe (Consejo de Europa) is a totally separate international organization located in Strasbourg, France, devoted to working toward European integration and protecting human rights since its founding in 1949. The principal achievement of the Council of Europe (CoE) is the 1950 European Convention on Human Rights (Convenio Europeo de Derechos Humanos, not to be confused with the Charter of Fundamental Rights of the European Union—Carta de los Derechos Fundamentales de la Unión Europea). In close relation with the Council of Europe, the European Court of Human Rights, ECHR (Tribunal Europeo de Derechos Humanos, TEDH) rules on applications concerning alleged human rights violations in the 47 Council of Europe member states. All European Union member states are likewise members of the Council of Europe. Negotiations for the EU to accede to the European Convention on Human Rights are ongoing.

Perhaps two additional minor points of confusion are the fact that the EU Parliament’s seat is in Strasbourg where the Council of Europe is located, and both the Council of Europe and the European Union share the same flag (a circle of twelve gold stars on a sky blue background).

Further evidence that that these institutions are often confused, even by legal professionals, is evidenced in the fact that in a Duke University Law Library research guide on the Council of Europe, the librarians thought it necessary to warn students that “although it has a close relationship with the European Union, the Council of Europe (Conseil de l’Europe, Consejo de Europa, Europarat, Consiglio d’Europa) is not part of the EU. Be especially careful not to confuse it with an EU institution called the European Council (Conseil européen, Consejo Europeo, Europäisher Rat, Consiglio europeo).”

Read more here:

European Council

Council of the European Union

Council of Europe

 

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”) usually refers to a testamentary gift of personal property (bienes muebles), often excluding money. In modern American usage “devise” is used to denote a testamentary gift of both real and personal property,* although the distinction between “devise” and “bequest” largely persists in British usage. “Legacy” is likewise a gift by will, especially of personal property and often of money, the beneficiary of a legacy being known as a “legatee.” And, of course, devises, bequests and legacies may all be equally described as “testamentary gifts.”

*This may be due, in part, to the fact that the US 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.” Black’s Law Dictionary notes that although “devise” traditionally referred to gifts of real property, in American usage a disposition of any property by will is a “devise.”

(Illustration: website of Sánchez-Gago, Vieira & Gallego Abogados, León, Spain)