Competencia can’t always be translated as “competence”

There are several legal contexts in which competencia does not mean “competence.” In the context of constitutional law and with respect to the legal system in general, competencia often has the meaning of “power,” as in competencia tributaria (“taxing powers,”) competencia legislativa (“legislative powers,”) or “competencia ejecutiva” (“executive powers” or “powers of the executive”). In that regard, an expression such as ámbito de competencias (or ámbito competencial) de las Comunidades Autónimas en materia sanitaria denotes the “scope of the Autonomous Communities’ powers in the healthcare sector.” Likewise, atribuir competencias is to “grant powers, while transferencia (or) traspaso de competencias (ejecutivas o legislativas) is “transfer of (executive or legislative) powers.”

In the context of procedural law, competencia often denotes “jurisdiction,” i.e., the power of a court (or other adjudicating body) to rule on given case. This is the meaning in expressions such as competencia por razón de la materia (“subject-matter jurisdiction”); competencia por razón de la persona (“personal jurisdiction” or “in personam jurisdiction) and competencia por razón de la cuantía del litigio (“jurisdiction based on the amount in controversy (or) the jurisdictional amount”). Competencia territorial is “territorial jurisdiction,” referring to the “forum” or “venue,” i.e., the court in which a case is heard. And competencia funcional (although often translated narrowly as “appellate jurisdiction”) actually determines which court has jurisdiction over each stage in a given proceeding, including the hearing of interlocutory motions, appeals and enforcement proceedings (incidentes, recursos y ejecución de sentencias). In addition, in this sense expressions such as conflicto de competencias, cuestión de competencia (as well as conflicto de jurisdicción) may perhaps be described generically as “jurisdictional disputes.”

In this context the adjective competente means “having jurisdiction.” This is the meaning in expressions such as tribunal competente (“court of competent jurisdiction”), tribunal competente en primera instancia (“court of original jurisdiction”), tribunal competente en última instancia (“court of last resort”) or tribunal competente en primera y única instancia (“court of first and last resort”).

In other respects, the expressions incompetencia and falta de competencia denote “lack (or) want of jurisdiction:” se inadmitió el recurso por falta de competencia (“the appeal was deemed inadmissible for lack (or) want of jurisdiction”). And, when warranted, a judge may “decline jurisdiction,” which in Spanish is declararse incompetente. But, ¡ojo! in this context juez incompetente refers to a judge (or court) who lacks jurisdiction over a given matter and obviously cannot be rendered as “incompetent.” Indeed, suggesting that a judge is “incompetent” might warrant a citation for contempt of court (desacato al tribunal).

In the context of “competition law” (Derecho de la competencia) competencia is logically rendered as “competition” rather than “competence.” This is true in a number of standard expressions including falseamiento de la competencia (“distortion of competition”); política de competencia (“competition policy”); competencia destructiva (“cut-throat competition”); competencia excesiva (“excessive competition”); competencia perfecta (“perfect competition”) or competencia desleal (“unfair competition”). And an expression such as practicas restrictivas de la competencia may often be rendered as “practices in restraint of trade.”

And finally, in the context of employment contracts cláusula de no competencia refers to a “non-competition clause,” likewise known as a pacto de no competencia (“covenant not to compete”).

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

días hábiles; días inhábiles

The appropriate translation of días hábiles or días inhábiles always depends on the context in which the expression is used. If días hábiles actually refers to días naturales (that is, if all days of the week are días hábiles for a particular activity), the expression must be translated as “calendar days.” If días hábiles refers to días laborables, they are “work days” or “working days” (días hábiles laborales). Días hábiles comerciales are, of course, “business days,” while días hábiles bancarios are “banking days.” When referring to the activities of securities markets, días hábiles bursatiles are “trading days.” And the days in which courts are in session (días hábiles judiciales) are “court days,” (or, perhaps less commonly, “judicial days” or “juridical days”).

The opposite (días inhábiles) for the above would be (in order): “non-working days” or “holidays;” “non-business days;” “non-banking days” (or “bank holidays,” particularly in the UK); “non-trading days” and “court holidays,” “court recess” or “non-court days.”

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

condena; condenar; condenado

In the terminology of criminal procedure condena has two distinct meanings, denoting a criminal “conviction” (a judicial finding of guilt) or a “sentence” (the punishment imposed on a convicted criminal defendant): fue condenado por narcotráfico (“he was convicted of drug trafficking”); le condenaron a seis años de prisión (“he was sentenced to six years in prison”). Thus, in this context the expressions sentencia de condena and sentencia condenatoria refer to a “conviction” or a “finding (or) judgment of guilty.”

But condena is likewise a civil procedure term that does not refer to a “judgment of guilty” or a “criminal sentence” as it does in criminal procedure, but rather denotes a “judgment for the plaintiff.” Thus, in civil procedure an expression such as se condenó al demandado means “judgment was rendered for the plaintiff” and not “the accused was convicted,” as expressions of this nature have sometimes been mistranslated.

In the classification of civil judgments, in contrast to sentencia declaratoria (a declaratory judgment with no award of relief), sentencia de condena or sentencia condenatoria denotes a judgment awarding relief to the plaintiff (demandante) in a civil action, ordering (condenando) the defendant (demandado) to pay a sum of money or to do or refrain from doing something stipulated in the judgment. Thus, in civil procedure contexts a sentencia de condena or sentencia condenatoria is generically a “judgment awarding relief” or, more specifically, a “judgment for the plaintiff (called “claimant” in England and Wales). In that regard, condena dineraria or condena al pago de cantidad de dinero is a “money judgment,” while condena no dineraria denotes a “non-money judgment.” Condena de hacer is a judgment ordering the defendant to perform a given act (to restore or transfer certain property to the plaintiff, for example), and may be rendered as “permanent mandatory injunction” or perhaps described as a “judgment ordering (or) compelling performance.” Conversely, a condena de no hacer orders the defendant to refrain from an action indicated in the judgment, constituting a “permanent prohibitory injunction” or, rendered descriptively, a “judgment ordering the defendant to refrain from X” or “judgment restraining defendant from X.”

Condena is likewise used in expressions such as condena al pago de daños y perjuicios (“order to pay damages” or “damages order”) and condena en costas (“order to pay costs” or “costs order”). Perhaps it should be underscored that in Spanish the losing party is “ordered” (condenado) to pay damages or costs, while in English that same idea is often expressed from the perspective of the prevailing or successful party, who is “awarded” damages or costs.* Thus, el demandado fue condenado al pago de daños y perjuicios means that the “defendant was ordered to pay damages,” but this is often expressed as “plaintiff was awarded damages.” Likewise, el demandado fue condenado en costas indicates that the “defendant was ordered to pay (the plaintiff’s) costs,” but this is usually expressed as “plaintiff was awarded costs.” And in a sentencia sin condena en costas the judge makes “no costs order” (the losing party is not ordered to pay costs), which is often expressed in English as “no award of costs” (the prevailing party is not awarded costs).

In line with the above, in criminal procedure condenado denotes a person who has been convicted of a criminal offense (a “convicted criminal defendant”), or one who has been sentenced in a criminal proceeding. But the meaning of condenado is quite different in the context of civil procedure in which the term refers to the “losing party” in a civil action in which a “judgment for the plaintiff” (sentencia condenatoria) has been rendered. In that regard, the condenado in a “money judgment” (condena dineraria) is a “judgment debtor,” while the expressions el condenado a pagar daños y perjuicios and el condenado en costas refer respectively to the losing party who has been “ordered to pay damages” and “ordered to pay costs.”

*See the September 19, 2016 post on “award.”

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

award; to award

In nonlegal contexts “award” is often a synonym for “prize,” as in “The Academy Awards” (los Óscar). “Award” has similar connotations in legal contexts as both a noun and a verb, but how the term is best translated may vary in different areas of law. In the context of arbitration, the decision of an arbitrator is known as an “arbitral (or) arbitration award,” which in Spanish is laudo arbitral. “To award a contract” is adjudicar un contrato, and “to award custody” (of children in a divorce proceeding, for example) is atribuir la guarda y custodia.

In civil procedure “award” may describe a judge’s decision granting a plaintiff compensation for damages (“award of damages”) or an order that the losing party bear the successful party’s costs (“award of costs”). It should be noted that in Spanish this is generally expressed from the perspective of the losing party who is ordered to pay damages (condenado al pago de daños y perjuicios) or ordered to pay costs (condenado en costas). Thus “plaintiff was awarded damages” would be expressed in Spanish as el demandado fue condenado al pago de daños y perjuicios (literally, “defendant was ordered to pay damages”). Likewise, “plaintiff was awarded costs” would be rendered in Spanish as el demandado fue condenado en costas (literally, “defendant was ordered to pay costs”). In that regard “award of costs” is most often expressed as imposición de costas or condena en costas, denoting a judge’s order assessing costs against the losing party.

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

attachment

“Attachment” is used in legal contexts with at least three distinct meanings. In the law of contracts, it most often denotes a document that is affixed to (and considered a part of) a contract (un adjunto; el documento adjunto). In this sense, in addition to “attachment,” a document affixed or appended to a contract may also be called a “schedule,” “appendix” “exhibit,” or sometimes an “annex.”

In contrast, in civil procedure, “attachment” has a radically different meaning, often referring to the judicial seizure of a defendant’s property or wages to secure a judgment, being one of the provisional remedies (medidas cautelares) that a plaintiff may seek against a defendant. Common expressions used in this context include “pretrial attachment” (embargo preventivo), “attachment of property (or) assets” (embargo de bienes) and “attachment of wages (or) earnings” (embargo de salarios).

And “attachment” is likewise used in a third, lesser known sense in which “attach” denotes “becoming attributed to or operative.” Thus, an expression such as “attachment of liability” refers to the moment in which civil liability arises or is incurred. This meaning of “attachment” is expressed in Spanish legal documents as nacimiento: “attachment of liability” (nacimiento de la responsabilidad civil). The verb “attach” is used similarly, being synonymous with “arises” or “is incurred”: “tax liability attaches upon receipt of income” (la obligación tributaria nace al percibir los ingresos).

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

draft

“Draft” is used with several different meanings in legal language. As a verb “to draft” means redactar, and is a synonym of “to draw up,” as in “to draft (or) draw up a contract.” In that regard, reference to a “draft version” of a document may describe a borrador or versión inicial. In other respects, in parliamentary practice a “draft bill” is an anteproyecto de ley, a precursor to a “legislative bill” (proyecto de ley) to be submitted to parliament or to a legislative assembly for approval. And in the context of negotiable instruments (títulos valores), “draft” is often used in the US as a synonym for “bill of exchange” denoting a letra de cambio.

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

allanamiento

In the terminology of civil procedure (Derecho procesal civil) allanamiento (a la demanda) is the defendant’s acceptance or admission of the claims set forth in the plaintiff’s complaint (conformidad del demandado con las pretensiones contenidas en la demanda), in which case the proceedings will generally terminate with a judgment for the plaintiff (sentencia estimatoria). There may be allanamiento total when the defendant admits all of the plaintiff’s claims, or allanamiento parcial when only some of the claims are admitted and the others can be adjudicated separately (i.e., son susceptibles de pronunciamiento por separado).

In contrast, in the terminology of criminal procedure (Derecho procesal penal) allanamiento (de morada)  refers to the unauthorized entry to a dwelling or other premises. In this context allanamiento may be translated as “trespass,” “unlawful entry,” or if force is used perhaps as “forcible entry,” “housebreaking” or “breaking and entering.”* A frequent source of confusion for translators is the fact that in Mexico, Argentina and other Spanish-speaking jurisdictions allanamiento refers to the legal entry and search of premises by the police (allanamiento policial) under a search warrant (orden de allanamiento). In contrast, in Spain allanamiento always denotes unlawful entry, while entrada y registro is the term used for a legal entry and search of premises by the police or other authorities incident to an arrest or criminal investigation. Thus, in Spain and in this context, “search warrant” is an orden de entrada y registro or, more properly, auto de entrada y registro,” and is often shortened to orden (or) auto de registro.

*Several bilingual terminology sources translate allanamiento as “breaking and entering” but in Spain, at least, the offense does not involve the use of force of any kind . Thus, allanamiento  is probably more accurately translated as “trespass” or “unlawful entry,” being defined as entrar en morada ajena o mantenerse en la misma contra la voluntad de su morador (Article 202, Código Penal).

One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.

 condena; condenar; condenado

In the terminology of criminal procedure (Derecho procesal penal) condena has two distinct meanings, denoting a criminal “conviction” (a judicial finding of guilt) or a “sentence” (the punishment imposed on a convicted criminal defendant): Fue condenado por narcotráfico (“He was convicted of drug trafficking”); Le condenaron a seis años de prisión (“He was sentenced to six years in prison”). Thus, in this context expressions such as sentencia de condena or sentencia condenatoria refer to a “judgment of conviction” or “judgment of guilty.”

But translators sometimes fail to recognize that condena is likewise a term of civil procedure (Derecho procesal civil) and that it does not refer only to a “judgment of guilty” or a “criminal sentence” as in the examples above, but that condena (al demandado) also has the additional meaning of “judgment for the plaintiff.” Thus, in the context of civil procedure an expression such as Se condenó al demandado means “judgment was rendered for the plaintiff” and not “the accused was convicted,” as this expression has sometimes been rendered.

In the classification of civil judgments, in contrast to sentencia declaratoria (a declaratory judgment without an award of relief), sentencia de condena and sentencia condenatoria denote a “judgment for the plaintiff” (called “claimant” in England and Wales) or, more generally, a “judgment awarding relief.” In that regard, condena dineraria or condena al pago de cantidad de dinero is a “money judgment,” while condena no dineraria denotes a “non-money judgment.” Condena de hacer is a “mandatory injunction,” i.e., a judgment ordering the defendant to perform a given act (to restore or transfer certain property to the plaintiff, for example) that might also be described as a “judgment ordering (or) compelling performance.” Conversely, a condena de no hacer is a type of “prohibitory injunction,” ordering the defendant to refrain from doing an act indicated in the judgment, which may likewise be translated descriptively as “judgment ordering defendant to refrain from X” or “judgment restraining defendant from X.”

Condena in this context is also used in expressions such as condena al pago de daños y perjuicios (“order to pay damages” or “damages order”) and condena en costas (“order to pay costs” or “costs order”). But perhaps it should be underscored that in Spanish the losing party is “ordered” (condenado) to pay damages or costs, while in English the same idea is generally expressed from the perspective of the prevailing or successful party who is “awarded” damages or costs. Thus, el demandado fue condenado al pago de daños y perjuicios means “defendant was ordered to pay damages,” but this is normally expressed in English as “plaintiff was awarded damages.” Likewise, el demandado fue condenado en costas indicates that the “defendant was ordered to pay (the plaintiff’s) costs,” but this is usually expressed in English as “plaintiff was awarded costs.” And in a sentencia sin condena en costas the judge makes “no costs order” (the losing party is not ordered to pay costs), which is generally expressed in English as “no award of costs” (i.e., the prevailing party is not awarded costs).

In line with the above, in criminal procedure el condenado denotes a person who has been convicted of a criminal offense (a “convicted criminal defendant”), or someone who has been sentenced in a criminal proceeding. But the meaning of condenado is quite different in the context of civil procedure in which the term refers to the “losing party” in a civil action in which a “judgment for the plaintiff” (sentencia condenatoria) has been rendered. In that regard, the condenado in a “money judgment” (condena dineraria) is a “judgment debtor,” while the expressions el condenado a pagar daños y perjuicios and el condenado en costas refer respectively to the losing party ordered to pay damages and the losing party ordered to pay costs.