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.

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.

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).

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.”

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

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)

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 (referred to generically in the Spanish Ley de Seguridad Vial as infracciones 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.

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.”

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).

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.