Multiple Meanings of desistimiento

Legal Terms with Multiple Meanings

Although desistimiento generically denotes “withdrawal” or “abandonment,” the appropriate translation of the term in legal contexts depends on the practice area in which it is used. In criminal law, in the context of defining “criminal attempt” (tentativa de delito), desistimiento de la tentativa refers to a criminal perpetrator’s voluntary abandonment of or withdrawal from a crime before it is consummated (desistimiento voluntario antes de consumar el delito). In English this is often formally called “renunciation of criminal purpose.”

In contract law desistimiento de contrato likewise denotes the voluntary, often unilateral withdrawal from a contract (desistimiento unilateral), and in English this may be expressed as a “unilateral cancellation (or) termination of contract.” Likewise, the right to withdraw from or to unilaterally terminate a contract and cancel a purchase (called derecho de desistimiento) is a feature of Spanish consumer protection legislation (Real Decreto Legislativo 1/2007, por el que se aprueba el texto refundido de la Ley General para la defensa de los consumidores y usuarios).

In other contexts, desistimiento (del demandante) is likewise used in civil procedure to denote the plaintiff’s abandonment of a proceeding before a trial of the issues, which does not preclude future prosecution of the claim (declaración unilateral del actor por la que tiene por abandonado el proceso, sin que ello suponga renuncia a la acción). In many US jurisdictions this “abandonment of suit” is known as a “voluntary dismissal” of the action or claim.

For the difference between desistimiento and renuncia in civil proceedings see: https://rebeccajowers.com/2016/07/26/espanol-juridico-8/

Multiple Meanings of “undertaking”

Legal Terms with Multiple Meanings

undertaking; to undertake

In the language of contracts “undertaking” denotes a “promise” or “pledge,” and is most often expressed in Spanish as compromiso. In its verb form, “to undertake (to do something)” is comprometerse (a hacer algo). Thus, for example, in an employment contract there may be a “confidentiality undertaking” (compromiso [or] acuerdo de confidencialidad) in which “Employee undertakes not to disclose Employer’s confidential information” (el Empleado se compromete a no divulgar la información confidencial del Empleador).

But in the language of EU competition law “undertaking” has a very different meaning, being a generic term for “business entity” that encompasses all types of enterprises without reference to any specific corporate form. In this context “undertaking” refers to any entity engaged in economic activity that offers goods or services in a given market, regardless of its legal status. In Spanish this generic term “undertaking” is rendered simply as empresa. Thus the EU competition rules set forth in Article 101 (3) of the Treaty on the Functioning of the European Union (Tratado de Funcionamiento de la Unión Europea) prohibit activities in restraint of trade including “all agreements between undertakings, decisions by associations of undertakings and concerted practices.” In the Spanish version of the Treaty this is expressed as todos los acuerdos entre empresas, las decisiones de asociaciones de empresas y las practicas concertadas.”

And, ¡ojo! Although in this context “undertaking” is empresa, in modern usage “undertaker” cannot be rendered as empresario, as the term has sometimes been mistranslated. Indeed, since the late 1600s (according to the Online Etymology Dictionary), the term “undertaker” denotes “a person whose profession is the preparation of the dead for burial or cremation and the management of funerals; funeral director” (Collins English Dictionary). Thus, “undertaker” may be more properly described as director de servicios funerarios (or with a similar expression) and is definitely not a generic term for empresario.

Multiple Meanings of competencia

Legal Terms with Multiple Meanings

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, falta de competencia denotes “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.

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”).

 

 

Multiple Meanings of días hábiles; días inhábiles

Legal Terms with Multiple Meanings
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.”

Multiple Meanings of condena

Legal Terms with Multiple Meanings
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.”

 

Multiple Meanings of “Award”

Legal Terms with Multiple Meanings
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.

Multiple Meanings of “attachment”

Legal Terms with Multiple Meanings
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).