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).

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*”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.

Mistranslations(?): autotutela administrativa

Can this be a MISTRANSLATION_

The meaning of autotutela administrativa has sometimes been misunderstood, and the term has been translated variously as “self-control,” “self-regulation, “self-protection,” “self-authorization,” “self-government” and “self-help.” The expression actually denotes the public administration’s powers to compel compliance and to enforce its own decisions without the intervention of the courts. In that regard, autotutela administrativa is defined as el privilegio de las Administraciones públicas según el cual sus actos se presumen válidos y pueden ser impuestos a los ciudadanos, incluso coactivamente, sin necesidad del concurso de los tribunales, y al margen del consentimiento de aquellos.* Thus, in this context autotutela denotes the “self-executing decision-making powers” of governmental agencies and may perhaps be rendered as the public administration’s (or) the government’s “compliance and enforcement powers,” an expression often used to describe the powers exercised by governmental agencies in the UK, Canada and Australia.

*EJ Enciclopedia Jurídica. http://www.enciclopedia-juridica.biz14.com

Mistranslations? cuantía del litigio

Cuantía del litigio and similar expressions such as cuantía de la demanda denoting the valor del objeto del proceso have sometimes been translated literally as “amount of the claim,” “amount claimed in the complaint,” or “amount of the litigation.” But in US civil procedure there are specific terms that express this concept including “amount in controversy” and “jurisdictional amount,” both of which denote the monetary amount claimed in a lawsuit that often determines which court will have jurisdiction to hear a given case. In this context an expression such as competencia por razón de la cuantía refers to “jurisdiction based on the amount in controversy.” Cuantía was likewise used in this context in the former Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil de 1881) in expressions such as juicio de menor cuantía (“small claims action/proceeding”) and juicio de mayor cuantía (“large claims action/proceeding”). In British English the amount in controversy is also often referred to as the “quantum” or “amount in dispute.”

When the Decano not a “Dean”

“Mistranslations?” includes examples of what I believe may be considered mistranslations that I have encountered over a twenty-five year period while working as a legal translator and teacher of legal English in Spain. Some may be actual mistranslations, while others are perhaps all-too-literal renderings of expressions that may have sufficiently close counterparts (“functional equivalents”) in the other language. Still others are translations that may simply not be accurate in the context in which they originally appeared.

decano ; juez decano; decanato ; juzgado decano

In academic contexts, decano can certainly be rendered as “dean,” as in the expression Decano de la Facultad de Derecho (“Dean of the Law School/Faculty of Law”). But decano has often been translated as “dean” in contexts in which this rendering is inappropriate. When referring to the head of a professional association in expressions such as Decano del Ilustre Colegio Notarial de Valencia and Decano del Ilustre Colegio de Abogados de Madrid, “decano” refers to the “president” of those entities. In this context colegio denotes a “professional association,” rather than a “college,” and in English the head of a professional association is most often its “president,” rather than a “dean.” Thus the decanos mentioned above are respectively the “President of the Valencia Notaries Association” and the “President of the Madrid Bar Association.” Some of the prominent international notaries associations that have presidents as their head officer include the International Union of Latin Notaries, National Notary Association of America, the Notaries Society of England and Wales and the Council of the Notariats of the European Union. Likewise, the head of the major US bar associations such as the American Bar Association or the National Bar Association, as well as the heads of the state bar associations are all called “presidents,” rather than “deans.” In this context vice decano refers to a “vice president,” while decano accidental is “acting (or) interim president.”

Similarly, in the context of the organization of the Spanish judiciary, decanato does not refer to a “dean’s office,” “deanery,” or even a “senior court” or “court clerk’s office,” as the term has sometimes been mistranslated, but rather to a juzgado decano, the court that oversees administrative matters for all of the courts within a given judicial district. In that regard, although often translated as “senior judge,” the juez decano (or simply decano) who presides a decanato is not necessarily the “senior judge” in the district, i.e., the judge with the most seniority (antigüedad), which is more appropriately expressed in Spanish as el juez más antiguo. In large judicial districts where there are a number of courts, the juez decano is elected by his fellow judges on the “Judges Board (or) Committee” (Junta de Jueces) to oversee court operations and to provide centralized judicial services, (although, in effect, in smaller districts this job may automatically fall to the senior judge). In view of his duties, a juez decano may perhaps be considered the Spanish counterpart of the “Chief Judge” of US Federal District Courts (not to be confused with the Chief Justice of the Supreme Court), who likewise oversees court administration. Thus for US audiences decano or juez decano and decanato or juzgado decano might be translated respectively as “Chief Judge” and “office of the Chief Judge.” For other audiences, or if there is a risk of confusion with the Chief Justice, perhaps “judge/office in charge of court administration” would be an appropriate descriptive translation for the two concepts.

Mistranslations(?): Why Derecho mercantil is “Business Law”

“Mistranslations?” includes examples of what I believe may be considered mistranslations that I have encountered over a twenty-five year period while working as a legal translator and teacher of legal English in Spain. Some may be actual mistranslations, while others are perhaps all-too-literal renderings of expressions that may have sufficiently close counterparts (“functional equivalents”) in the other language. Still others are translations that may simply not be accurate in the context in which they originally appeared.

One of my students recently asked me why I translate Derecho mercantil as “Business Law,” and why can’t the term be rendered literally as “Mercantile Law” or as “Commercial Law.” There is certainly no official translation for Derecho mercantil, and translations between different legal systems are never 100% equivalents, but in this case I believe “Business Law” is simply closer to the meaning of Derecho mercantil than the other two options.

In its strictest sense, “Mercantile Law” is often understood to refer to the “law merchant” or lex mercatoria, the system of customary law widely adopted in Europe during the Middle Ages.

“Commercial Law” is a narrower concept than Derecho mercantil. In England and Wales a course on commercial law may sometimes be limited to the study of the sale of goods (compraventa de mercancías), international sales (compraventa internacional), the law of agency (Derecho de agencia) and consumer credit (crédito al consumo). Likewise, in the US “commercial law” is often understood as being limited to those areas of law governed by the Uniform Commercial Code, including the sale of goods (compraventa de mercancías), negotiable instruments (títulos valores), bank deposits (depósitos bancarios) and secured transactions (operaciones garantizadas), among others.

And, finally, a quick look at the table of contents of any standard Spanish law school textbook on Derecho mercantil makes it clear that it is much broader than “commercial law,” and shares many of the disciplines studied in the US in business law courses. These include:

  • Derecho societario (corporate law or, in its broader meaning, law of business entities)
  • Contabilidad mercantil (business accounting)
  • Propiedad intelectual e industrial (intellectual property)
  • Derecho de la competencia (competition/anti-trust law)
  • Derecho de la competencia desleal (unfair competition law)
  • Derecho de la publicidad (advertising law)
  • Contratos mercantiles (commercial contracts)
  • Títulos valores (negotiable instruments)
  • Derecho del mercado de valores (securities markets law)
  • Derecho bancario (banking law)
  • Derecho de los seguros privados (insurance law)
  • Derecho concursal (insolvency law)