Although not a frequent translation mistake, I have seen “personal property” translated several times literally as bienes personales. But of course there is really nothing personal about personal property! Also called “personalty” and sometimes “chattels,”  personal property is the common law counterpart of bienes muebles. This contrasts with “real property,” also called “real estate” or “realty,”  which is bienes inmuebles in Spanish. In English-speaking civil law jurisdictions, in bijural jurisidictions (such as Canada) and in international organizations such as the EU or the Council of Europe,  personal property and real property may also be referred to respectively as “movable property (or) movables”  and  “immovable property (or) immovables.” Thus, (just as a recap):

bienes muebles—personal property; personalty; chattels; movable property; movables

bienes inmuebles—real property; real estate; realty; immovable property; immovables

“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.

Consejo Europeo–European Council

Consejo de Europa–Council of Europe

These institutions are sometimes confused in translation, Consejo Europeo often being mistranslated as “Council of Europe,” rather than as “European Council,” even in academic publications. Examples I have encountered include mistranslating Directiva xxxx/xx CE del Parlamento Europeo y del Consejo Europeo as “EC Directive xxxx/xx of the European Parliament and the Council of Europe,” or rendering the expression “cuando el Consejo Europeo empiece a adoptar medidas en codecisión con el Parlamento…” incorrectly as “when the Council of Europe begins to adopt codecision procedures with the Parliament…”.

Likewise, in the other direction, “Council of Europe” has often been confused with Consejo Europeo when translating, for example, “Council of Europe Committee of Ministers” as Comité de Ministros del Consejo Europeo (rather than Comité de Ministros del Consejo de Europa) or rendering “Publication of the Council of Europe, Strasbourg” as Publicación del Consejo Europeo de Estrasburgo. And an article entitled “The Limited Powers of the European Parliament and the Council of Europe” most likely intended to address the limited powers of the European Parliament and the European Council.

Briefly, the European Council (Consejo Europeo) is an institution of the European Union; the Council of Europe is not. Consejo Europeo and “European Council” refer to the Council of Ministers of the European Union (EU), which currently (pre-Brexit) has 28 member states. In contrast, the “Council of Europe” (Consejo de Europa) is a totally separate international organization located in Strasbourg, France, devoted to working toward European integration and protecting human rights since its founding in 1949. The principal achievement of the Council of Europe (COE) is the 1950 European Convention on Human Rights (not to be confused with the European Union’s Charter of Fundamental Rights). The Council of Europe’s European Court of Human Rights (ECHR) rules on applications concerning alleged human rights violations in the 47 Council of Europe member states. All European Union member states are likewise members of the Council of Europe. Negotiations for the EU to accede to the European Convention on Human Rights are ongoing.

The fact that these institutions are often confused, even by legal professionals, has been noted in a research guide on the Council of Europe prepared by librarians at the Duke University Law Library: “Although it has a close relationship with the European Union, the Council of Europe (Conseil de l’Europe, Consejo de Europa, Europarat, Consiglio d’Europa) is not part of the EU. Be especially careful not to confuse it with an EU institution called the European Council (Conseil européen, Consejo Europeo, Europäisher Rat, Consiglio europeo) which is a special meeting of the EU’s Council of Ministers.”

https://law.duke.edu/lib/researchguides/councileurope/

vecindad; vecindad civil

In legal translations I have seen vecindad translated simply as “neighborhood” and vecindad civil común as “common legal residence.” But both of these renderings fail to recognize the specific meaning that vecindad has in the context of Spanish civil law. Vecindad civil denotes one’s legal regional domicile, the geographic area in Spain in which a person habitually resides and which determines whether he is subject to the Civil Code (Derecho civil común, the “common law” of Spain) or to local law (Derecho civil foral o especial). Separate systems of local civil law exist principally in the Basque Country and Navarre, as well as in Catalonia, Aragon, the Balearic Islands and Galicia, affecting, among others, family and inheritance law (Derecho de familia y sucesiones) and marital property systems (régimen económico matrimonial).

Thus, persons under vecindad civil común are subject to the provisions of the Civil Code (Código Civil), while those having vecindad civil foral o especial are governed by local law. In that regard, when acquiring Spanish nationality, new citizens must state whether they choose to be governed by the Civil Code (acogerse a la vecindad civil común) or by local law. And perhaps it should be noted that although the expression Derecho foral is often used to denote all areas of Spain having their own civil law, strictly speaking it refers solely to the local law of the Basque Country and Navarre, while the local law in force in Catalonia, Aragon, the Balearic Islands, and Galicia is known as Derecho especial.

fondo

In expressions such as pronunciamiento sobre el fondo, entrar al fondo or sin entrar al fondo, etc., fondo has a very specific meaning in Spanish procedural terminology that translators may sometimes ignore. In that regard, in procedural contexts fondo has sometimes been mistranslated as “foco” or “meollo,” entrar al fondo as “touching upon the core of the matter,” and sin pronunciamiento sobre el fondo as “without getting down to the real issues.”

These renderings all fail to recognize that when referring to judicial decisions (resoluciones judiciales), fondo (del asunto) is the Spanish expression for what is known in English as “merits (of the case).” Thus juicio sobre el fondo refers to a “trial on the merits,” while pronunciamiento sobre el fondo denotes a “decision (or) ruling on the merits.” Likewise, entrar al fondo is “to decide/rule on the merits” and sin entrar a fondo means “without a decision/ruling on the merits.”

Derecho anglosajón; Anglo-Saxon law

I once saw the CV of an English-Spanish translator indicating that she was an “expert in Anglo-Saxon law.” That surprised me until I realized that what she most likely meant was “common law,” “English law” or perhaps even “Anglo-American law.” In effect, in Spanish the expression Derecho anglosajón is often used (as is Derecho angloamericano) to refer to “common law,” but in this context it can’t be rendered back into English literally as “Anglo-Saxon law.” If not an outright mistranslation, in this context “Anglo-Saxon law” is certainly at least misleading since, strictly speaking, the expression refers solely to the body of law that prevailed in England from the 6th century until the Norman Conquest (1066), i.e., el Derecho de los anglosajones.

Thus, as used in Spanish legal texts Derecho anglosajón is rarely intended to mean “Anglo-Saxon law,” but rather “common law,” “Anglo-American law,” or the “law of England and Wales.” Likewise, references to jueces (or) tribunales anglosajones generally denote “common law judges (or) courts,” rather than “Anglo-Saxon judges (or) courts.” When a Spanish lawyer comments on los jueces anglosajones y su acatamiento al precedente, he is probably not referring to Anglo-Saxon judges, but rather to the fact that common law or Anglo-American judges follow precedent. Likewise, when a Spanish law professor presents to his class an análisis comparativo de dos sentencias dictadas por tribunales anglosajones, he is most certainly referring to “two judgments rendered by the English courts,” rather than by Anglo-Saxon courts.

So, obviously, as translators we certainly need to be knowledgeable in the modern law of England and Wales. But we probably don’t need to be that familiar with the legal institutions existing during the reign of Alfred the Great.

abuso de derecho; abuse of process

Abuso de derecho has sometimes been inappropriately interpreted as referring to procedural abuse and thus translated as “abuse of process,” “malicious prosecution,” or “frivolous (or) vexatious litigation.” But as used in Spain (and in other Spanish-speaking jurisdictions) abuso de derecho is actually a much broader concept, being defined in Article 7.2 of the Código Civil as any acto u omisión que sobrepase manifiestamente los límites normales del ejercicio de un derecho, con daño para tercero. This Civil Code premise is often referred to in English as the “doctrine of abuse of rights,” defined as “the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability.”* Thus, abuso de derecho is not “abuse of process,” and may be more accurately rendered in English as “abuse of rights,” or if a more precise, descriptive translation is warranted, “the abusive exercise of legitimate rights in detriment to the interests of a third party.”

In contrast, the concepts of “abuse of process,” “malicious prosecution,” or “frivolous (or) vexatious litigation” are perhaps more closely reflected in Spanish procedural terminology in expressions such as mala fe procesal, temeridad procesal or, depending on the context, even fraude procesal. In summary, abuso de derecho is a broad term denoting the abuse of a legitimate right in detriment to another person, while expressions such as “abuse of process,” “malicious prosecution,” and “frivolous (or) vexatious litigation” are limited to procedural contexts and describe abuses of the judicial process for ulterior or collateral purposes.

*“The doctrine of abuse of rights, found in various guises in Civil Law jurisdictions, refers to the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability.” (From the Abstract to the article “The Doctrine of Abuse of Rights: Perspective from a Mixed Jurisdiction,” by Elspeth Reid, Electronic Journal of Comparative Law, Vol. 8.3, October, 2004)

http://www.ejcl.org/83/abs83-2.html

Derecho hipotecario; Ley hipotecaria; Distrito Hipotecario

Translators unfamiliar with Spanish law often automatically assume that the adjectives hipotecario and hipotecaria refer exclusively to mortgages (hipotecas). Thus there is an assumption that Derecho hipotecario is limited to “mortgage law” and that Ley hipotecaria refers to legislation specifically governing mortgages, and these mistakes have found their way into several bilingual legal dictionaries.

Although traditionally called Derecho hipotecario, in Spain this branch of law actually concerns the registration of rights in real property on the Land Register (Registro de la Propiedad). The fact that Derecho hipotecario is a misnomer (and that Derecho inmobiliario registral is a more accurate term) has been recognized in multiple Spanish legal sources. For example, Luis Ribó Durán in his Diccionario de Derecho (Bosch, 2005) explains that

“Derecho hipotecario es la parte del Derecho que estudia la adquisición, transmisión, modificación y extinción de los derechos sobre bienes inmuebles en cuanto éstos se reflejan en el Registro de la Propiedad. (…) La denominación Derecho inmobiliario registral, posiblemente la más adecuada, ha sido muchas veces postergada ante la de Derecho hipotecario, de más rancia tradición al enlazar con el nombre de la ley especial que, antes de la promulgación del vigente Código Civil, desmarcó de éste la materia inmobiliaria registral…”.

Likewise, in its article on “Derecho inmobiliario registral,” the Gran Enciclopedia Rialp (1991) notes that

“…generalmente, entre los autores españoles, se llama ‘Derecho hipotecario,’ denominación que obedece al título de la ley que regula la materia, la Ley Hipotecaria. Es claro que el nombre de la ley no responde a su contenido, pues en ella se regula, además de la hipoteca, todo referente al Registro de la Propiedad.”

Thus, rendering Derecho hipotecario as “mortgage law” is misleading, while a translation that accurately reflects the true content of this legal discipline in Spain might be “Law of Land (or) Real Estate Registration” or “Land (or) Real Estate Registration Law,” etc. (The Registro de la Propiedad for England and Wales is called the “Land Registry.” There is no centralized land register for real property in the US where real estate is recorded in the state where it is located.)

Similarly, Ley Hipotecaria really cannot be appropriately translated as “Mortgage Act,” as it is often rendered. Although, as indicated above, part of the Ley Hipotecaria (93 articles) does indeed deal with mortgages per se, the true subject of the law (329 articles) is actually land registration, setting forth how the property registry (Registro de la Propiedad) is to be organized and stipulating the duties of property registrars (Registradores de la Propiedad). Thus, in this case Ley Hipotecaria might be more properly translated as “Land Registration Act” or “(Real) Property Registration Act,” while there may be other instances in which a law might be accurately described as a “mortgage act,” such as the Ley del Mercado Hipotecario (“Mortgage Market Act”).

In other respects, the expression Distrito Hipotecario is sometimes rendered as “Mortgage District,” but actually refers to a “land (or) property tax district.” And Oficina Liquidadora del Distrito Hipotecario denotes a “district land (or) property tax office” in charge of collecting transfer taxes and stamp duties levied on the transfer of real property and other transactions (impuestos sobre transmisiones patrimoniales y actos jurídicos documentados), as well as inheritance and gift taxes (impuestos sobre sucesiones y donaciones).