Latinismos: What is a subpoena?

A previous post examined the meaning of “summons” and the contexts in which it can be translated as either citación or emplazamiento.* But what about the related Latin term “subpoena”? “Sub poena” is Latin for “under penalty” (bajo pena), and a subpoena is an order to appear in court in which failure to comply will incur some form of punishment. “Subpoena” (a secas) generally denotes a “subpoena ad testificandum,” an order compelling a witness to appear in court to testify, specifying the time and date on which to do so. After the 1997 Civil Procedure reform, in England and Wales a subpoena is now known as a “witness summons.” A second form of subpoena, a “subpoena duces tecum” (“duces tecum” = “bring with you”) orders a witness to appear in court with documents, records or other items of evidence of interest in an ongoing trial.

Any translation of subpoena must reflect the fact that there will be a penalty for failure to comply with the terms of that order. Thus possible Spanish renderings of subpoena include citación con apercibimiento, citación coercitiva and citación intimatoria.

* https://rebeccajowers.com/2016/10/20/espanol-juridico-difference-between-emplazamiento-and-citacion/

Latinismos: venia

Venia, from the Latin meaning “grace,” “indulgence” or “favor” is frequently used in legal Spanish in at least two different contexts. When a lawyer in court addresses the judge asking for permission to proceed, he inevitably commences by saying “con la venia, Señoría” or “con la venia del Tribunal.” This corresponds to the English expression “May it please the Court,” a formalism dating from the early 17th century that is still used in Anglo-American courts when lawyers commence their oral arguments, as well as in written briefs submitted for the judge’s consideration.

Venia also denotes a lawyer’s agreement to transfer a case to another colleague. When a client changes lawyers, his newly-appointed counsel must solicitar la venia, asking that the case be transferred to him. Likewise, the former attorney is said to dar (or) conceder la venia, turning over all of the case documents to the new lawyer and pledging to cooperate with him to ensure that it is successfully prosecuted.

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Latinismos: fumus boni iuris; periculum in mora

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of Latin expressions used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not generally used in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I believe legal translators will encounter most often.

fumus boni iuris ; periculum in mora

These two Latin expressions are not used in legal English, but they are nevertheless fundamental concepts in civil procedure in Spain and in many other Spanish-speaking jurisdictions. Indeed, these are the two requisites that must be present in order for a judge to grant a plaintiff provisional remedies (medidas cautelares)* in a civil proceeding. In that regard, the plaintiff must first demonstrate fumus boni iuris or, in Spanish, aparencia de buen derecho. It must be apparent that the plaintiff has a legal position warranting interim relief (situación jurídica cautelable) and that he has a prima facie likelihood of success on the merits. Secondly, the plaintiff must demonstrate periculum in mora or peligro por la mora procesal. Often translated literally as “danger in delay,” the periculum in mora requisite ultimately requires the plaintiff to demonstrate that there is a real risk of irreparable injury to him due to delay in the resolution of the proceedings.

*In addition to “provisional remedies,” medidas cautelares can be rendered in English as “interim/interlocutory remedies,” “interim relief” and, if the relief ordered is an injunction (orden de hacer o no hacer), “injunctive relief.”

Latinismos in Common Law Courts

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of latinismos used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not in general use in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I have encountered most often in my work.

 A few Latin expressions used in common law courts

When a party files a “motion to proceed in forma pauperis,” he is asking for legal aid and to be allowed to litigate without costs. In Spanish this is often rendered as solicitud de asistencia jurídica gratuita or, formerly, solicitud del beneficio de pobreza. A party who decides to defend himself at trial is said to “proceed pro se (or) pro per” (litigar sin abogado or ejercer el derecho de la autodefensa) and is known as a “pro se (or) pro per litigant”. In order to bring an action or appear in court a party must have standing (legitimación procesal), often rendered in Latin as locus standi, especially in British usage. One of the parties at trial will bear the burden of proof (carga de la prueba), called onus probandi, or simply onus, also most often used in Latin in British usage. And a lawyer who renders free legal services is said to work pro bono or pro bono publico (“for the public good”), a Latin expression also used among Spanish lawyers who provide trabajo pro bono.

Latinismos : Expressions with animus

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of latinismos used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not in general use in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I have encountered most often in my work.

Latin expressions with animus

Spanish legal texts (particularly textbooks on Derecho civil and Derecho procesal) are riddled with dozens of Latin expressions containing the word animus, denoting “willingness,” “intent” or “intention.” The required animus contrahendi, for example, must be present in order for parties to enter into a valid contract, or the presence of animus auctoris will determine whether the perpetrator of a crime actually acted with criminal intent. Here are these and some of the other expressions with animus that translators may encounter in their work:

  • animus auctoris—intention or will to perpetrate a crime
  • animus contrahendi—intention to enter into a contract
  • animus derelinquendi—intention of abandoning property
  • animus domini—intent to own
  • animus donandi—intention of giving; intent to make a gift (donación)
  • animus furandi—intent to steal or commit theft
  • animus laedendi—intent to injure
  • animus necandi—intent to kill (willful element of homicide)
  • animus nocendi—intent to harm or cause damage
  • animus novandi—intention of the original parties to an obligation to replace an existing obligation or party to an obligation with a new one (novación)
  • animus possidendi—intention to possess as owner
  • animus recuperandi—intention to recover property
  • animus revocandi—intention to revoke a will
  • animus socii—intention or willingness to assist in the commission of a crime as accomplice
  • animus solvendi—intention of paying a debt or discharging an obligation (also rendered in Spanish as ánimo solutorio)
  • animus spoliandi—intent to deprive or dispossess another of possession or enjoyment of property or rights in property
  • animus testandi—testamentary intent; intention to make a will
  • animus transigendi—willingness to make concessions or compromise; willingness to settle or to enter into a settlement agreement (transigir)

Latinismos: de cuius

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of latinismos used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not in general use in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I have encountered most often in my work.

de cuius

The Latin term de cuius often appears in texts dealing with inheritance law (Derecho de sucesiones) and is an abbreviation of the expression de cuius hereditate agitur meaning “the one whose estate is at issue.” Thus, like causante (and often difunto, fallecido or finado) de cuius denotes la persona que causa o produce una herencia. In this context de cuius (as well as causante and the other terms mentioned above) may be rendered in English simply as “the deceased” or “the decedent.”