Mistranslation? (“Next of kin”)

Who is my next of kin_

Yesterday I encountered a misleading translation in an online glossary on inheritance law terminology that I believe is worth noting. There the expression “next of kin” was rendered in Spanish as pariente consanguíneo más cercano. My first thought was, “What? My husband of 46 years isn’t my ‘next of kin’?” And of course, the Spanish definition is incomplete because “next of kin” denotes “the person or persons most closely related to a decedent by blood or affinity” (Black’s Law Dictionary), affinity (afinidad* in Spanish) being “kinship by marriage.”

Knowing someone’s next of kin is important in case of an emergency, and is used to distribute the estate of a decedent who has died intestate. Several sources that I’ve checked indicate that in many jurisdictions there is no legal definition of “next of kin.” But for what it’s worth, here are explanations of the term chosen at random from a US, UK and Australian perspective:

  • From Petrov Law Firm (California): Generally, the list of next-of-kin is as follows: spouse, children, parents, siblings, grandparents. Without a will to follow, a probate court will go down the list until it reaches a living person and assign that person your entire estate.
  • From Howells Solicitors in the UK: “Next of kin usually means your nearest blood relative. In the case of a married couple or a civil partnership it usually means their husband or wife. Next of kin is a title that can be given, by you, to anyone from your partner to blood relatives and even friends. It is also possible to name more than one person as your next of kin. This is a title that is primarily used in order for emergency services to know who to keep informed about an individual’s condition and treatment.
  • From Legalvision in Australia: The NSW Coroners Act 2009 assists in determining who will be a person’s next of kin. Where the Coroner is involved and a decision must be made by a deceased’s next of kin, the Coroner will decide who that person is based on an order of priority. First, the deceased’s spouse, then adult children, parents, adult siblings, then lastly any person named as executor under the person’s will, or who was their legal personal representative immediately before death. A spouse also includes a de facto partner.

*afinidad—parentesco que mediante el matrimonio se establece entre cada cónyuge y los parientes del otro (Diccionario Jurídico Thompson-Aranzadi)

Mistranslations: usufructo is not (necessarily) a “life interest” in property

Can this be a MISTRANSLATION_

In the past I have seen usufructo translated into English variously as “life interest,” “life interest trust” and “life estate.” All of these translations imply that usufructo is, by definition, always a grant of the use and enjoyment of property for the lifetime of the beneficiary.

This translation is misleading and may be patently incorrect in many contexts when, for example, usufructo is granted for a specific period of time (called usufructo a plazo, usufructo a término, usufructo temporal or usufructo constituido por tiempo determinado). An example of usufructo a plazo would be the usufruct of a dwelling granted to the guardian of a minor child until the child reaches the age of majority. In such cases usufructo may perhaps be rendered as “beneficial interest” or even “beneficial ownership,” given that “beneficial owner” is “one recognized as the owner of something because use and title belong to that person, even though legal title may belong to someone else” (Black’s Law Dictionary).

Usufructo is likewise often subject to a condition (usufructo condicional), being another mode of usufruct that cannot be translated as “life interest,” “life interest trust” or “life estate.” Indeed, usufructo may be subject to a condition precedent (condición suspensiva), such as usufructo granted to a son or daughter provided that he/she marries. Likewise usufructo condicional may be subject to a condition subsequent (condición resolutoria), such as usufructo granted to a son/daughter that will terminate if he/she doesn’t marry by the time he/she is thirty years old. These are admittedly silly examples but that, once again, demonstrate that usufructo cannot always be equated with a “lifetime interest” or “lifetime estate.”

In summary, perhaps it is best to translate usufructo (a secas) as “beneficial interest” and reserve “life interest,” “life interest trust” and “life estate” for situations that actually refer to usufructo vitalicio.

See more on usufructo here:

Mistranslations of Ministerio Fiscal and Ministerio Público

Can this be a MISTRANSLATION_

Several Spanish web sources and a monograph published in English on the Spanish legal system translate Ministerio Fiscal literally as “Fiscal Ministry,” and this rendering may prompt readers unfamiliar with Spanish institutions to assume that the Ministerio Fiscal is in some way related to taxes or the tax authorities. In English “fiscal” often denotes “of or relating to financial matters, public finance or taxation” (Black’s Law Dictionary) and, thus, the literal translation “Fiscal Ministry” may indeed erroneously suggest that the Ministerio Fiscal is a Ministerio para asuntos fiscales or “Tax Ministry.”

But in fact Ministerio Fiscal (as well as Ministerio Público and Fiscalía) all refer to Spain’s “Public Prosecution Service,” (or) “Office of the Public Prosecutor,” and in this context a fiscal is a “public prosecutor” (called “district attorney” in many US jurisdictions). In summary (and despite the name), the Ministerio Fiscal is not a government ministry and is totally unrelated to taxation, the term simply denoting Spain’s autonomous “Public Prosecution Service.” In contrast, as a part of the Ministerio de Economía y Hacienda (“Ministry of Economy and the Treasury”) the Agencia Tributaria is Spain’s tax service, similar to the Internal Revenue Service (IRS) in the US or HM Revenue & Customs (formerly Inland Revenue) in the UK.

Likewise, Ministerio Público has also often been translated literally as “Public Ministry,” and even as “ministerial office.” But, once again, these renderings fail to convey the fact that Ministerio Público is simply another term for Ministerio Fiscal.

For US audiences Ministerio Fiscal, Ministerio Público and Fiscalía have sometimes been translated as “Justice Department” or “Attorney General’s Office,” and Fiscal General del Estado has often been rendered as “Attorney General.” But, once again, these may not be accurate renderings for those Spanish institutions. The position of the Department of Justice within the executive branch of the US government is actually more akin to the Spanish Ministerio de Justicia. While the Attorney General is part of the US President’s Cabinet (as is the Ministro de Justicia who sits on the government’s Consejo de Ministros), as underscored above, the Ministerio Fiscal (despite being called a “ministerio”) is an autonomous entity that is not a government ministry at all. Moreover, the Fiscal General del Estado is not a cabinet member (miembro del Consejo de Ministros), but rather may perhaps be described as the “Chief Public Prosecutor” or “Head of the Public Prosecution Service.” Thus, “Public Prosecution Service” would again appear to be a more accurate translation for Ministerio Fiscal, Ministerio Público and Fiscalía, even for US readers. And, in other respects, rendering these three terms as “Crown Prosecution Service” for UK audiences may likewise be equally inappropriate, since criminal prosecutions in Spain are not brought “on behalf of the Crown” as they are in the UK and other Commonwealth countries.

What is alevosía?

Alevosía appears as one of the basic agravantes (“aggravating circumstances” that may increase criminal liability) in the penal codes of Spain and other Spanish-speaking jurisdictions. It has been translated variously as “treachery,” “perfidy” and “malice aforethought,” none of which really reflects the true meaning of the term. “Treachery” is defined in the Oxford Online Dictionary as “betrayal of trust” or “the quality of being deceptive,” while “perfidy” is the “state of being deceitful and untrustworthy.” “Malice aforethought” is a criminal law term denoting “the requisite mental state for common-law murder” (Black’s Law Dictionary, 7th ed.).

But do any of these three terms express the meaning of alevosía? Article 22.1 of the Spanish Código Penal affirms that hay alevosía cuando el culpable comete cualquiera de los delitos contra las personas empleando en la ejecución medios, modos o formas que tiendan directa o especialmente a asegurarla, sin el riesgo que para su persona pudiera proceder de la defensa por parte del ofendido.

Thus alevosía implies committing a crime in a manner that prevents the victim from defending himself, ensuring both its consummation and that the perpetrator remains unharmed. Given this definition, instead of “treachery,” “perfidy” or “malice aforethought,” alevosía may perhaps be more accurately translated as “calculated impunity.”

Translating capitulaciones matrimoniales (and notes on marital property systems)

Capitulaciones Matrimoniales (and Marital Property Systems in Spain)(1)

The expression capitulaciones matrimoniales is often translated as “prenuptial (or) antenuptial agreement.” This may be correct in many circumstances, but it should be underscored that the expression can also denote a “postnuptial agreement” entered into after marriage. In effect, capitulaciones matrimoniales traditionally refers to an agreement between the spouses, entered into either before or during the marriage, setting forth the marital property system (régimen económico matrimonial) that will govern their relationaship. As such, it may perhaps be best described simply as a “marital property agreement.”

Briefly, the two most common marital property systems in Spain are régimen de (bienes) gananciales (“community property system”) in which all property acquired during the marriage is jointly owned by both spouses, and régimen de separación de bienes (“separate property system”) in which during the marriage spouses own property separately. In marriages governed by the community property system, bienes gananciales (often shortened to “gananciales”) refers to jointly-owned “community property,” while bienes privativos describes the “separate property” that each spouse owned before marriage or acquires by gift or inheritance during the marriage, and which is not considered a part of jointly-owned marital property.

Other expressions describing this type of spousal agreement include capítulos matrimoniales, pactos matrimoniales and pactos capitulares. In other respects, the term capitulaciones paramatrimoniales is sometimes used in Spain to denote the cohabitation agreement that nonmarital couples sign when registering a nonmarital union (unión de hecho).

The community property system (régimen de gananciales) is the “default system” (régimen por defecto) in the Spanish regions governed by the Civil Code. A separate property system (régimen de separación de bienes) is the default system in Catalonia and the Balearic Islands. Default marital property systems in other regions include comunicación foral de bienes in certain territories of the Basque Country, consorcio conyugal in Aragón, and sociedad conyugal de conquistas in Navarre.

Common law countries traditionally observe strict separate property rules, with the exception in the US of the community property systems in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. (Alaska has an “opt-in” system allowing spouses the option to make their marital property community property). Collectively these are generally known as “community property states” in contrast to the other “separate property states,” sometimes also referred to as “common law states.” In community property states “community property” is normally defined as all property acquired during the marriage, including money and wages, and items purchased with that money. “Separate property” is usually property owned by either spouse before marriage, acquired by gift or inheritance, or purchased with separate funds during the marriage.

Read more here.

Mistranslations: Don’t confuse libertad condicional and libertad provisional

Is this really a mistranslation_

It is all too frequent to see libertad condicional and libertad provisional confused in the Spanish press. Here are some recent headlines: “Paco Pérez* abandonó en la tarde del viernes la prisión de Picassent (Valencia) al haberle sido concedida la libertad condicional tras abonar una fianza de 30.000 euros.” Or, “Manolo Martínez,* presunto coautor de una estafa de más de 900.000 euros, salió en la tarde de ayer de la cárcel de Puerto II en libertad condicional.” Of course, what was actually meant here is libertad provisional, not libertad condicional.

Journalists can’t afford to make this mistake, and translators certainly can’t either. So what’s the difference between libertad provisional and libertad condicional?

In Spain libertad condicional generally denotes the early release of a prison inmate who is classified in what is termed tercer grado del tratamiento penitenciario (the minimum security level of the offender treatment program), has served at least three-fourths of his sentence (que haya cumplido las tres cuartas partes de la condena) and who has exhibited good behavior (observado buena conducta).** When granted libertad conditional, an inmate is allowed to serve the remainder of his sentence in the community. In that regard, libertad condicional may perhaps be rendered as “early release” or as “parole” (the latter defined in Black’s Law Dictionary as “the release of a prisoner from imprisonment before the full sentence has been served”). Related terminology includes conceder/revocar la libertad condicional (to grant/to revoke parole) and violación de la libertad condicional (parole violation).

Thus Pepe and Manolo appearing in the headlines above are not en libertad condicional (on parole), because they have not been formally accused, tried or convicted of an offense, nor are they serving a custodial sentence (cumpliendo una pena privativa de libertad) for which they could be granted parole. What the journalists meant to say was that they have been granted libertad provisional, having been released on bail pending their respective trials.

Indeed, in Spanish criminal proceedings libertad provisional generally denotes “pretrial release,” or “release pending trial,” referring to the release of a criminal suspect or defendant pending the outcome of a criminal investigation or while awaiting trial. In this case a judge may order libertad (provisional) con fianza (“release on bail”) or libertad (provisional) sin fianza, a “release without bail” similar to “release on recognizance” (ROR) in the US in which the releasee promises to appear for trial at a later date. In Spain libertad sin fianza is often granted with medidas cautelares (in this context, “conditions”) such as the requirement to periodically report to the court (obligación de comparecer en el juzgado).

___________________

*”The names have been changed to protect the innocent”

**Early release can granted exceptionally under other circumstances (supuestos especiales de adelantamiento de la libertad condicional). These include libertad anticipada por enfermedad (often referred to in English as “compassionate release”) for inmates suffering from a serious incurable disease (internos aquejados de enfermedad grave incurable), or inmates over 70 years old (internos mayores de 70 años).

Mistranslations(?): “attorney-at-law”

Can this be a MISTRANSLATION_

“Attorney-at-law” has sometimes been mistranslated as licenciado en Derecho. But a licenciado en Derecho has completed an undergraduate law degree (similar to the LL.B. or “Bachelor of Laws” awarded at British universities) but may (or may not) decide to practice law. In contrast “attorney-at-law” is the term generally used in the US to denote a lawyer who is engaged in the practice of law, a “practicing attorney” (ejerciente or abogado en ejercicio). A practicing attorney must of course hold a law degree (licenciatura en Derecho) but, in fact, many licenciados en Derecho are engaged in professions other than the practice of law.

It should perhaps be noted that with the adoption of the European Union’s Bologna Process, Spanish universities have phased out their licenciatura programs and now offer a Bologna-compatible undergraduate degree called grado. Thus a law degree is now known as grado en Derecho and those who graduate in law now are called graduados en Derecho rather than licenciados.