Weird Legal English: What do you mean by “take against the will”?

This seemingly cryptic expression “to elect to take against the will” denotes “a spouse’s statutory right to choose, upon the other spouse’s death, either the share under the deceased spouse’s will or the share of the estate as defined in the probate statute, which usually amounts to what a spouse would have received had he died intestate” (Black’s Law Dictionary). In this context “statutory share of the estate” refers to the porción sucesoria legal, while “share under the deceased spouse’s will” is the porción sucesoria dispuesta en el testamento. Thus, the surviving spouse’s “right to elect to take against the (other spouse’s) will” is el derecho del cónyuge supérstite de optar por la porción sucesoria legal en lugar de la dispuesta en el testamento del cónyuge difunto.

It should be noted that “take against the will” has sometimes been mistranslated as impugnar el testamento, which in English is more properly expressed as “to contest (or) to challenge the will.” When probate laws allow a surviving spouse to elect to take against the will, the spouse can choose to apply the provisions of the law rather than the provisions of his/her deceased spouse’s will. But in order to elect to take against a decedent’s will, the surviving spouse does not have to contest or challenge (impugnar) that will, but rather, depending on the jurisdiction, must usually appear before a probate judge to confirm that choice and to “file an election to take against the will form.” This implies filing a document certifying that the surviving spouse freely chooses to take against the will and fully understands the implications of doing so.

Legal English, Legal Translation and Resources for Legal Translators

Today Fernando Cuñado published an interview on the Traducción Jurídica Youtube Channel in which we discussed legal translation, teaching Legal English and resources that nonlawyer translators can use to learn the law they need.

I’m providing above a link to the interview in case it may prove of interest to readers of this blog. (There are also many other useful videos on the Traducción Jurídica Youtube Channel for legal translators and learners of Legal English).

Property Law: What is a Life Estate?

Legal English for Spanish Speakers

Of the seven units of Legal English* that I teach in the Máster en Asesoría Jurídica de Empresas at the Universidad Carlos III in Madrid, each year my students unanimously vote “Property Law” as the one they find the most difficult to understand. All of my students are young lawyers, but they perceive Anglo-American property law as being far removed from the system of derechos reales that they studied in their courses on Derecho Civil. And the concept of “life estate” is perhaps the aspect that they find most challenging. In the event it may be of interest to readers of this blog, I’m reviewing below some of the concepts that we recently discussed in class.

First, an overview:

Life Estate—A life estate is an estate limited in duration to either the life of the owner or the life of another person. It may be created by deed (in this context, an instrument by which a grantor grants to a grantee some type of interest in land), by will, or by operation of law. If A grants a life estate to B and retains the fee, he or she is said to have a reversionary interest (a right to the future enjoyment of property that one originally owned). When B dies, the land will revert (go back) to A. If A grants real property “to B and on B’s death to C,” B will own a life estate and C will own a remainder interest (an interest that takes effect after another estate has ended) in fee simple. Life tenants may likewise convey their interest to others. Thus, if B conveys his or her life estate to D, D will own a life estate for the duration of B’s life, after which the property will belong to C, the holder of the fee. When a person holds property for the duration of the life of another, this is known as an estate pur autre vie.

Here, the initial problem may reside in grasping the meanings of “estate,” “interest” and “fee” as used in property law contexts. Perhaps we can explore these concepts further in a future blog post, but for now it will suffice to say that here “estate” denotes the amount, degree, nature and quality of a person’s interest in land; “interest” refers to a legal or equitable claim or rights in property; and “fee” is a heritable interest in land, “fee simple” being absolute ownership akin to dominio pleno in Spanish property law.

But although the specific meanings of “estate,” “interest” and “fee” seemed clear to my students and they realized that (salvando las distancias) “life estate” might be considered somewhat similar to usufructo vitalicio, they still struggled to understand the three traditional life estates: reversionary interest; remainder interest and estate pur autre vie. Placing these in a practical example was the key. When we looked at this from the perspective of four friends, the relationships became clearer:

 Common Law Life Estates among Four Friends

(Paco, Javi, Manolo and Juan)

  • Reversionary interest

Paco is a generous guy who decides to grant his friend Javi a life estate in his beach house, while retaining the fee (ownership) for himself. After Javi dies the property will revert (return to; go back to) Paco, the original owner. Paco has retained a reversionary interest in the beach house over which he granted Javi a life estate.

  • Remainder interest

Paco grants a life estate in his beach house to Javi, stating that when Javi dies the property will go to another friend, Manolo. Javi has a life estate in the property while Manolo has a remainder interest, an interest that only takes effect after another estate has ended (and in legal terms Manolo is a remainderman).

  • Estate pur autre vie

Paco granted Javi a life estate in his beach house, but Javi already has a bigger house on a nicer beach. So Javi decides to convey his life estate in Paco’s beach house to Juan. Juan will have a life estate for as long as Javi is alive. So, Juan enjoys a life estate, but only during Javi’s lifetime. Juan holds the beach property for the duration of another person’s (Javi’s) life (pur autre vie—for the duration of the life of another).

For another aspect of property law (easements–servidumbres) see here

For general comments on derechos reales, see here

For more on usufructo, see here and here

*Contracts; Corporate Law; Civil Procedure; Criminal Law and Criminal Procedure; Labor Law; Property Law and Tax Law

Terminology of Criminal Procedure: The Top 40 Verbs You May Need to Know

legal english crimpro terms

One of the “problems” with bilingual legal dictionaries is that most contain mainly single-word noun entries. But my students and lawyer clients need lots of verbs to be able to explain Spanish law to their English-speaking clients. This week we are winding up a 18-hour unit on criminal procedure, and I’m sharing below a list of the “Top 40 Crimpro Verbs (and their Prepositions!)” that we’ve used in class.

to commit a crime

to suspect (someone) OF committing a crime

to be suspected OF committing a crime

to be UNDER investigation

to arrest (someone)

to take (someone) INTO custody

to be UNDER arrest

to be arrested FOR (here specific offense)

to be arrested ON a charge OF (here specific offense)

to be brought BEFORE the judge/the court

to appear IN court

to file/bring charges AGAINST the suspect

to charge (someone) WITH a crime

to be charged WITH two counts OF (here specific offense)

to accuse (someone) OF (here specific offense)

to be accused OF (here specific offense)

to enter a plea OF guilty or not guilty

to plead guilty/not guilty TO the charges

to confess TO (here specific offense)

to set/fix bail

to post bail

to release (someone) ON bail

to prosecute (someone) FOR (here specific offense)

to try (someone) FOR (here specific offense)

to be prosecuted/tried FOR (here specific offense)

to testify AGAINST (someone) AT trial

to defend (someone) AGAINST the charges

to be prevented FROM introducing illegally-obtained evidence AT trial

to pass verdict ON the accused

to acquit/to find (someone) not guilty OF (here specific offense)

to be acquitted/to be found not guilty

to convict/to find (someone) guilty OF (here specific offense)

to be convicted/to be found guilty

to find (someone) guilty AS charged

to be sentenced TO ten years in prison FOR (here specific offense)

to serve a ten-year sentence

to be released FROM incarceration

to be granted parole

to be ON parole

to violate parole

“Legal” Verbs and Prepositions (Criminal Procedure)

Legal English for Spanish Speakers

What’s the right preposition for these “crimpro” verbs??

1. The police suspected Mr. X ____ having committed a crime; indeed they believed they had enough evidence________ him to accuse him _____ committing burglary.

2. After the investigation, the prosecutor brought charges _______ Mr. X, who would be charged ________ two counts of burglary.

3. He was then arrested ______ burglary and taken _______ custody.

4. He was arrested _______ a charge ______ burglary and brought _______ the judge.

5. While ______ arrest Mr. X did not confess _____ the crime, but rather he pleaded not guilty _____ the charges filed ________ him.

6. When he appeared ______ court, the judge ordered that Mr. X be released ________ bail pending trial, during which he would be prosecuted and tried _______ burglary.

7. The arresting officer testified _____ Mr. X at trial, while his defense counsel defended him _________ the charges.

8. The prosecution was prevented ______ introducing illegally-obtained evidence ______ the proceedings.

9. After retiring ____ the deliberations room, the jury passed verdict _______ the accused.

10. The jury found Mr. X guilty ________ charged.

11. In summary, Mr. X was finally convicted ________ burglary and was sentenced ________ ten years in prison.

12. After serving four years of his ten-year sentence, Mr. X was released _________ prison and placed ______ parole.

Answers:
  1. of; against; of
  2. against; with
  3. for; into
  4. on; of; before
  5. under; to; to; against
  6. in; on; for
  7. against; against
  8. from; during
  9. to; on/upon
  10. as
  11. of; to
  12. from; on

Legal English: The “Color” of Law

 

The Color of Law

“Color” is often used in legal contexts with the meaning of “appearance” or “semblance” and the expression “under color of…” suggests something done “under the pretext (or) guise of” something else. Thus, something done “under color of law” is done with the apparent authority of the law. Acting “under color of office” may describe someone pretending to be a public official, or a public official who abuses his position for gain. And possession “under color of title” may refer to an occupant who holds himself out as the owner of a given property, acting as if he is actually the titleholder.

Many actual colors are used in legal language in many areas of law. Here are some of the most common (there may be many more!):

RED

  • red herring prospectus—a preliminary prospectus for the sale of securities that has not yet been approved by the Securities and Exchange Commission

BLUE

  • blue law—a statute regulating or prohibiting commercial activity on Sundays
  • blue sky law—a statute establishing standards for offering and selling securities to protect citizens from fraud
  • blue pencilling—deleting or censoring the contents of a book or other work
  • bluewater seaman—an able-bodied seaman

GREEN

  • greenbacks—dollars; legal-tender notes in the US
  • greencard—US residency card; in the EU, an international auto insurance document
  • green-card marriage—marriage of convenience in order to obtain permanent US residency
  • greenfield site—undeveloped land, presumably uncontaminated
  • green paper—a government document that invites discussion concerning approaches to an issue of public interest

WHITE

  • Whiteacre—a fictitious tract of land used in legal discourse (especially law school hypotheticals) to discuss real-property issues; when the discussion involves two tracts of land, they are generally termed “Blackacre” and “Whiteacre”
  • white paper—a government report on a given subject; a detailed or authoritative report
  • white-collar crime—crime committed by business professionals, usually involving a form of financial theft or fraud (may include bribery, embezzlement, insider trading, etc.)
  • white knight—a party that rescues the target of an unfriendly or hostile takeover bid
  • white slavery—forced prostitution

BLACK

  • Blackacre—a fictitious tract of land used in legal discourse (especially law-school hypotheticals) to discuss real-property issues; when the discussion involves two tracts of land, they are generally termed “Blackacre” and “Whiteacre”
  • black economy—illicit economic activity done in violation of official regulations (also called “shadow economy”)
  • black market—illicit trade in goods or commodities in violation of official regulations; a place where illicit trade is conducted
  • black-leg labor—a chiefly British term for “scab” (a strikebreaker or, generally, someone acting against union policies)
  • blackletter law (also: “hornbook law”)–fundamental and well-settled legal principles
  • blackmail—extortion or coercion of money or other benefit in exchange for refraining from publicizing damaging information about the victim

BROWN

  • brownfield site—a tract of land that has been developed for industrial purposes, but is underused or abandoned due to environmental pollution

PINK

  • pink slip—a slang term for a notice of termination of employment
  • pink sheet—daily publication of a listing of bid and ask prices for over-the-counter stocks, published by the National Quotation Bureau

YELLOW

  • yellow-dog contract—a contract of employment prohibiting union membership (generally illegal under US state and federal law)

(Sources: Black’s Law Dictionary, Merriam-Webster Dictionary of Law, Oxford Dictionary of Law, Investopedia)

Who said “whose” is only for people? (Using “whose inanimate”)

Legal English for Spanish Speakers

This aspect of English grammar is not limited to legal usage, but the convenience of using “whose inanimate” arises so often in legal writing that I cannot resist the temptation to address it here. Generations of native speakers of English have been taught categorically that in relative clauses “whose” should only be used when referring to people, while “which” must be used to refer to things. Thus, as a simple example, the expression cuyo contenido se tiene aquí por reproducido will most often be translated using “of which” as “the content of which is incorporated by reference herein.” However, the use of “whose” in this example would be perfectly correct: “whose content is incorporated by reference herein.”

The authoritative Fowler’s* English usage dictionary includes numerous examples of “whose” used as a relative pronoun with an inanimate antecedent. In the Burchfield edition, which contains many examples of this usage taken from the Oxford English Dictionary, Fowler puts this matter to rest by saying,

“…in the starch that stiffens English style one of the most effective ingredients is the rule that whose (as a relative pronoun) shall refer only to persons. …Let us, in the name of common sense, prohibit the prohibition of whose inanimate; good writing is surely difficult enough without the forbidding of things that have historical grammar, and present intelligibility, and obvious convenience, on their side, and lack only—starch.”

And lawyer-lexicographer Bryan Garner has expressed the same opinion in both of his usage dictionaries:**

“Whose may usefully refer to nonpersons (an idea whose time has come). This use of “whose,” formerly decried by some 19th-century grammarians and their predecessors, is often an inescapable way of avoiding clumsiness.”

 

*The New Fowler’s Modern English Usage, R.W. Burchfield, ed. Oxford: OUP, 1998.

**Bryan Garner, Garner’s Dictionary of Legal Usage and Garner’s Modern American Usage, both 3rd ed., OUP, 2011 and 2009.

Terminology of Criminal Procedure in English: 20 Verbs (and their Prepositions)

legal english crimpro terms

In our unit on the Criminal Law and Procedure, my students of Legal English often express surprise at the number of seemingly simple verbs used in describing criminal proceedings, many of which are collocations that must be coupled with the right preposition. In the event that they may be of interest to readers of this blog, here are what perhaps may be considered the Top 20 Legal English Crimpro Verbs:

  • to suspect (someone) OF having committed a crime
  • to commit a crime
  • to accuse (someone) OF a crime
  • to be charged WITH a crime
  • to bring charges AGAINST (someone)
  • to arrest (someone) ON a charge OF (X)
  • to be arrested FOR an offense
  • to be brought BEFORE a judge
  • to plead guilty/not guilty TO a crime
  • to confess TO a crime
  • to be released ON bail
  • to prosecute (someone) FOR an offense
  • to be tried FOR an offense
  • to defend the accused AGAINST the charges
  • to pass verdict ON the accused
  • to find the accused guilty AS charged
  • to convict/acquit the accused
  • to sentence the accused TO 10 years in prison
  • to serve a 10-year sentence
  • to be released FROM incarceration

20 Answers (2): Terminology of Criminal Law and Criminal Procedure

20 Questions...(2)

Here are the answers to the 20 Questions on the Terminology of Criminal Law and Criminal Procedure published in a previous blog post:

1) A public official who conducts criminal prosecutions on behalf of his jurisdiction: PROSECUTOR

2) An agreement between two or more persons to engage in a criminal act: CONSPIRACY

3) At common law, the offense of breaking and entering a building with the intent to commit a felony: BURGLARY

4) The judgment in a criminal case imposing a punishment of imprisonment, probation, fine, forfeiture or some other penalty: SENTENCE

5) A rule that prohibits a second trial or punishment for the same offense: DOUBLE JEOPARDY

6) The fraudulent conversion of property with which a person has been entrusted: EMBEZZLEMENT

7) The killing of a human being without premeditation or malice and without legal excuse or justification: MANSLAUGHTER

8) The defense that the accused was elsewhere at the time the crime was committed: ALIBI

9) The act of bringing an accused before a court to answer a criminal charge and to enter a plea of guilty or not guilty: ARRAIGNMENT

10) The criminal offense of obtaining money or other things of value by duress, force, threat of force, fear, or under color of office: EXTORTION

11) The intentional and premeditated killing of a human being: (FIRST-DEGREE) MURDER

12) A sentence that allows a person convicted of a crime to continue to live and work in the community under the supervision of the court: PROBATION

13) The release of a person from incarceration after serving a portion of his/her sentence if certain conditions are met: PAROLE

14) The crime of giving something of value with the intention of influencing the action of a public official, witness, juror, etc: BRIBERY

15) Detention of a person on a criminal charge: ARREST

16) The degree of proof required to convict a person of a crime: BEYOND A REASONABLE DOUBT

17) The false making, material alteration, or uttering of any writing with the intent to defraud: FORGERY

18) The crime of taking personal property, without consent, with the intent to deprive the owner of it permanently: THEFT

19) A crime not amounting to a felony: MISDEMEANOR

20) The felonious taking of money or something of value from a person against his will, by force or by putting him in fear: ROBBERY

 

20 Questions (2): Terminology of Criminal Law and Criminal Procedure

20 Questions...(1)

This is an exercise that I use with my students of Legal English at the Universidad Carlos III in Madrid. After finishing each unit, we often review dictionary definitions of the legal terms and concepts that we’ve discussed in class to make sure they’re clear. Several students who follow this blog suggested that I might make exercises of this nature available here in the event that they may prove useful to other readers.

This entry concerns some (only a few of the many!) terms and concepts of Criminal Law (Derecho penal) and Criminal Procedure (Derecho Procesal Penal).

Please provide a term for the following definitions (Answers will be published soon in another blog post):

1) A public official who conducts criminal prosecutions on behalf of his jurisdiction:

2) An agreement between two or more persons to engage in a criminal act:

3) At common law, the offense of breaking and entering a building with the intent to commit a felony:

4) The judgment in a criminal case imposing a punishment of imprisonment, probation, fine, forfeiture or some other penalty:

5) A rule that prohibits a second trial or punishment for the same offense:

6) The fraudulent conversion of property with which a person has been entrusted:

7) The killing of a human being without premeditation or malice and without legal excuse or justification:

8) The defense that the accused was elsewhere at the time the crime was committed:

9) The act of bringing an accused before a court to answer a criminal charge and to enter a plea of guilty or not guilty:

10) The criminal offense of obtaining money or other things of value by duress, force, threat of force, fear, or under color of office:

11) The intentional and premeditated killing of a human being:

12) A sentence that allows a person convicted of a crime to continue to live and work in the community under the supervision of the court:

13) The release of a person from incarceration after serving a portion of his sentence if certain conditions are met:

14) The crime of giving something of value with the intention of influencing the action of a public official, witness, juror, etc:

15) Detention of a person on a criminal charge:

16) The degree of proof required to convict a person of a crime:

17) The false making, material alteration, or uttering of any writing with the intent to defraud:

18) The crime of taking personal property, without consent, with the intent to deprive the owner of it permanently:

19) A crime not amounting to a felony:

20) The felonious taking of money or something of value from a person against hiS will, by force or by putting him in fear: