When learning legal terminology in a bilingual context one of the first pitfalls encountered are so-called “false friends,” words or expressions that appear to be cognates, but are actually unrelated in meaning. Many years ago I set about identifying the “Top 40 False Friends in Spanish-English Legal Translation.” As the list grew I had to change the title to “101 False Friends.” In my collection I now have well over that number and will be sharing some of them in this blog. To be fair, many are only partial false friends that may actually be cognates when used in one branch of law, while perhaps qualifying as false friends in another legal practice area. And in some instances the cognate may simply not be the most appropriate rendering in legal contexts.

actor; actor

The term actor is used in Spanish procedural terminology in at least two different contexts in which the term cannot be appropriately translated literally as “actor.” In civil procedure, at the trial (primera instancia) level actor and la parte actora are synonyms for demandante, denoting the “plaintiff” or “claimant” in a civil action.

In criminal procedure actor civil refers to a party to a criminal proceeding who is seeking compensation for damages for civil liability arising out of the criminal act being tried. In Anglo-American jurisdictions claims for compensation for damages arising from criminal offenses are typically filed in a separate civil suit and, thus, the role of the actor civil in the Spanish criminal process may often be unclear to English-speaking audiences. In brief, in Spain claims for compensation for damages arising during the commission of a crime (reclamación de la responsabilidad civil derivada de la comisión de un delito) are usually tried simultaneously with the prosecution of criminal defendants during criminal proceedings. Actor civil designates the party who enters an appearance in a criminal proceeding to file a claim for damages in what amounts to a civil liability action conducted simultaneously with (or within) a criminal procecution. Civil and criminal liability may thus be determined in the same proceeding if the actor civil enters an appearance and asks to be acknowledged as a party to the criminal proceedings as a plaintiff claiming damages based on the same incident for which a conviction for criminal liability is being sought (la parte solicita que se la tenga por personada en el procedimiento en calidad de actora civil). And in perhaps most cases the victim and and person seeking civil redress are obviously the same.

Actor civil has often been rendered literally as “civil plaintiff” or “civil claimant,” translations that perhaps fail to reflect the fact that the expression actually denotes a party to a criminal proceeding. And, indeed, since this “civil action within a criminal trial” concept will perhaps be foreign to English-speaking audiences, actor civil may require a more detailed descriptive translation such as “party claiming civil damages in a criminal proceeding.” In other respects, the civil claim heard during a criminal trial is often referred to as a proceso civil acumulado, precisely because it is, in effect, a civil action joined or consolidated with (within) a criminal procecution.

See: Víctor Moreno Catena and Valentín Cortés Domínguez. “El llamado ‘actor civil’ en el proceso penal.” Derecho Procesal Penal. Valencia: Tirant lo Blanch, 2005, p. 125 ff.

 

 

 

These terms are certainly look-alikes, but as used in electoral law (Derecho electoral) recuento and “recount” may or not be cognates, depending on the context. In English “vote recount” refers exclusively to a second or repeat tabulation of votes when the accuracy of the initial vote tally is questioned. The most famous case of an election recount in recent history is undoubtedly the vote recount conducted in Florida during the 2000 presidential election between George W. Bush and Al Gore. In Spanish, however, recuento may denote both the initial tallying of votes or, as in English, a second vote count. In that regard, the DRAE defines recontar as contar o volver a contar el número de cosas. Thus recuento de votos may be a synonym of escrutinio de votos denoting the counting of votes for the first time, as in Los colegios electorales han cerrado y ha comenzado el recuento de votos (“The polling stations have closed and the counting of votes has commenced”). But, as in English, recuento de votos may also refer to a “recount,” i.e., to a second or subsequent canvassing of votes. This was implicit, for example, in news articles published in Spain concerning the 2000 US election recount, such as one entitled La victoria de Bush depende del recuento en Florida.

The same may apply in other contexts. Recuento físico de existencias denotes a “physical inventory,” “inventory count” or “physical stock-taking,” and may refer to an initial inventory or stock count (its usual meaning) or a second or subsequent one. In contrast, in English the expression “inventory (or) stock recount” always denotes a second or subsequent review of stock after an initial inventory has been conducted.

In other respects, in the context of corrections law (Derecho penitenciario) recuento has a totally different meaning. In that regard, expressions such as recuento de internos or recuento de reclusos refer to an “inmate headcount” or “inmate rollcall.”

 

 

 Puro y simple isn’t so pure and simple!

In legal contexts puro/a (y simple) cannot generally be translated literally as “pure (and simple),” since the expression often means “unconditional.” Obligaciones puras (“unconditional obligations”) are those that are not subject to any condition or term (no sujetas a ningún tipo de condición, plazo o término) and, thus, payment or performance of those obligations may be demanded at any time. Donación pura y simple denotes an “unconditional gift,” in contrast to a donación modal (or)  donación onerosa upon which the donor has imposed a condition or encumbrance.

With regard to negotiable instruments (títulos valores), checks and bills of exchange (cheques y letras de cambio) must contain an “unconditional order to pay a fixed amount of money.” In Spanish this is expressed as un mandato puro y simple de pagar una suma determinada. And in the context of the law of succession (Derecho de sucesiones) heredero puro y simple denotes an heir who accepts his inheritance unconditionally (known as aceptación pura y simple), without exercising the option to limit his liability for the debts of the inherited estate to the value of the inheritance (called beneficio de inventario).

 

Activo and pasivo are used in many different areas of legal practice in which it would be meaningless to translate these terms literally as “active” and “passive.” When used as nouns, in accounting (contabilidad) activo often refers to “assets,” while pasivo denotes “liabilities:” activo circulante (“current assets”); activo fijo (“fixed assets”); activo de explotación (“operating assets”); pasivo circulante (“current liabilities”); pasivo a largo plazo (“long-term liabilities/loans”), etc. Likewise, in insolvency law (Derecho concursal) the expression masa activa del concurso denotes the assets of an insolvent’s estate, while masa pasiva del concurso refers to his liabilities, including all debts owed to creditors.

In civil procedure (Derecho procesal civil), the adjective activo/a often refers to the “plaintiff” or “claimant” (demandante), while pasivo/a denotes the “defendant” (demandado). Thus, legitimación activa is “plaintiff’s standing” or “standing to sue,” while legitimación pasiva is “defendant’s standing” or “standing to be sued.” Similarly, litisconsorcio activo refers to the “joinder of plaintiffs/claimants” and litisconsortes activos are “co-plaintiffs” or “co-claimants,” while litisconsorcio pasivo is “joinder of defendants” and litisconsortes pasivos are “co-defendants.”

In the Law of Obligations (Derecho de obligaciones or Derecho de la relación obligacional), an acreedor (“creditor” or “obligee”) is often referred to as the sujeto activo de la obligación (the party entitled to demand performance of the obligation), while the deudor (“debtor” or “obligor”) may be described variously as the sujeto pasivo de la obligación (the party who has undertaken to perform an obligation) or the sujeto activo del cumplimiento (the party who owes performance).

In that regard, solidaridad activa refers to an obligation in which a single debtor owes an obligation to two or more joint and several creditors, any of whom may demand performance of the entire obligation, while solidaridad pasiva denotes an obligation in which two or more debtors are jointly and severally liable to a single creditor for the same obligation and, thus, any of the debtors may be compelled to perform the entire obligation.

In criminal law (Derecho penal), sujeto activo may refer to the “principal” or “perpetrator” of a crime (often called autor del delito), while sujeto pasivo may, in turn, denote the “victim” (ofendido or víctima del delito). And with respect to specific offenses, for example, cohecho activo is the crime of “offering a bribe” to a public official, while cohecho pasivo denotes a public official’s accepting or “taking a bribe.”

In tax law (Derecho tributario), sujeto pasivo is one of several terms for “taxpayer,” and in this context the sujetos activos are of course the “tax authorities”  empowered to levy and collect taxes. Thus, for example, the expression sujeto pasivo por obligación personal is often used to denote a “resident taxpayer,” while sujeto pasivo por obligación real refers to a “non-resident taxpayer,” concepts that may likewise be expressed as sujeto pasivo residente and sujeto pasivo no residente.

In other respects, in electoral law (Derecho electoral), sufragio activo refers to the “right to vote,” while sufragio pasivo is the “right to stand for election.”

And finally, clases pasivas is an additional expression in which pasiva cannot appropriately be translated literally as “passive” (although it often appears as such, even in “official” translations). Sometimes mistranslated as “retired civil servants,” clases pasivas (del Estado) is actually a broader concept, referring to civil servants (funcionarios públicos) and their relatives or dependents (parientes o dependientes) who receive any type of pension or other benefit from the state, including retirees (jubilados), widows and widowers (viudas y viudos), orphans (huérfanos) or beneficiaries of disability pensions (beneficiarios de pensiones por incapacidad). In that regard, depending on the context clases pasivas may perhaps be translated broadly as “beneficiaries of civil service pensions” or “recipients of civil service benefits.”