Legal translation is a notoriously challenging specialisation. Translators navigate not only between languages but also between legal systems, which may be very different, and which are always evolving; this requires ongoing CPD from the translator to keep up with the changes in legal concepts and terminology.
Other difficult aspects may include ambiguity, a document not being exclusively legal (i.e. an autopsy report or a patent), and handwritten bits which prove hard to decipher.
On top of the general difficulties above, the huge differences between Common Law and Civil Law legal systems make translating legal texts from English into Spanish (and vice versa) particularly challenging. Different systems mean different concepts, writing styles, and terminology, creating a number of issues and traps.
Today, I share a selection of five things Spanish legal translators face when translating English documents.
Bear in mind that
- ‘English’ refers to concepts, language, texts, etc. from England and Wales only, as opposed to other jurisdictions where they may exist or apply.
- ‘Spanish’ refers to concepts, language, texts, etc. from Spain’s derecho común (subject to the Civil Code) only, and doesn’t include the local laws of specific regions.
Legal terminology isn’t bound to a language (i.e. English) but to a legal system (i.e. England and Wales). That’s why the main difficulty of translation is the lack of conceptual equivalence between legal systems. The levels of equivalence can be categorised in different ways but for simplification purposes, let’s categorise them into three levels: ‘full equivalents’, ‘partial equivalents’, and ‘non-equivalents’.
To illustrate non-equivalents, I’m sharing two examples of English concepts which don’t exist in the Spanish legal system:
‘Domicile’, as understood under the law of England and Wales, doesn’t exist in Spanish law. The vague and ambiguous English concept of ‘domicile’ is more attached to someone’s intention to belong to a place than to their actual place of residency. This allows a person to acquire Spanish domicile (under English law) without being a resident in Spain (under Spanish law).
To make things even more difficult, there’s the Spanish false friend domicilio, which looks similar but means something different. Domicilio is related to residency and generally means ‘address’. It also appears in many expressions, such as domicilio social (‘registered office’) or domicilio conyugal (‘matrimonial home’).
The closest (but not equivalent) Spanish concept to that of English ‘domicile’ is vecindad civil, which differs from residency. Depending on the Spanish region where a person resides, they’ll be subject to the Civil Code (derecho civil común) or to a local law (Derecho civil foral o especial).
A trust is a useful and versatile instrument for managing assets for people. Under a trust, assets are held by one person (the ‘trustee’, who is the legal owner) at the request of another (the ‘settlor’) for the benefit of a third party (the ‘beneficiary’). This English legal concept is common in succession and family law but also used in companies law. There are numerous types of trusts, each with its own characteristics and requirements. It’s a genuinely complex concept and, as there’s no such thing in Spanish law, it’s a real challenge for legal translators.
Trusts cannot be created by will under Spanish law and foreign trusts aren’t recognised (Spain isn’t a signatory to the Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition). Referring to testamentary trusts (created under a will), the Spanish law considers them an uncommon type of fiduciary relationship between several parties and will deem trustees both beneficial and legal owners of the trust assets (while in English, the trustee is the legal owner only). In relation to taxes, a foreign trust is disregarded by the Spanish authorities and treated as belonging to the settlor or the beneficiary.
The closest thing to a trust in Spanish law is the patrimonio protegido de las personas con discapacidad (protected estate of a disabled person). The patrimonio protegido is a mechanism allowing the de facto guardian of a disabled person to manage the assets to satisfy that person’s needs. But the differences between a trust and a patrimonio protegido are significant. Unlike a trust, a patrimonio protegido isn’t different from the person’s personal estate and the beneficiary is the owner (the disabled person). This means that, unlike trust assets, a patrimonio protegido can be chased by creditors. Moreover, trustees have more powers than the administrator of a patrimonio protegido.
Translating ‘trust’ is a tricky business. It requires a deep analysis of the term in context to understand which type of trust it is, and thoughtful consideration of the type of document, the purpose of the text, the intended reader and other elements, so as to decide which translation strategy suits best.
2. Partial equivalents
By ‘partial equivalents’ I’m referring to these two situations: 1. When concept A and B share most of their characteristics, but not all. 2. When concept A contains all characteristics of concept B (concept B is one type of concept A) but concept A has additional characteristics.
Legal professions are good examples of partial equivalents. See the similarities and differences between the professions of notaries and notarios below.
- General notaries (also called public notaries or notaries public);
- Scrivener notaries; and
- Ecclesiastical notaries
- Law degree (or qualification as a solicitor or barrister within the last 5 years);
- 2-year distance-learning course (Notarial Practice Course).
- Application for a Faculty and Admission to the Roll of Notaries.
For scrivener notaries (once admitted as general notaries):
- Examinations (in advanced notarial practice, the legal system of a foreign country and two foreign languages) by the Worshipful Company of Scriveners of the City of London 2-year period of supervision.
National competitive exams made up of four parts
From this point onwards, all information about notaries refers to general notaries only
How many are there?
About their role
More restricted than that of notarios.
Often seen as a complementary career, as most notaries also practise as solicitors.
A highly-respected profession.
Dual role: public official and legal professional.
Authorised to conduct general legal practice (except litigation), such as conveyancing and probate.
Certifying what they see and hear as a public record.
Filing and managing the records of the documents they authorise, so they can collaborate with the authorities when required.
Needed when buying a property in the country?
Needed when selling company shares in the country?
Can you get married before one?
Can you get divorced before one?
- the divorce is by mutual consent;
- there are no minor children;
- there are no disabled children.
Where do they practice?
Can they engage in introduction and referral arrangements?
Yes, they can, but they have to comply with a strict set of rules, which are included on sections 5.1-5.3 of the SRA Code of Conduct for Solicitors, RELs and RFLS (link in the sources section below).
Forced retirement at 70.
Sources used to create the comparison above:
The Notaries Society: What is a Notary?
The Society of Scrivener Notaries: Qualification
The Law Society: Legal professionals – who does what?
Faculty Office: Notaries Practice Rules 2019
Solicitors Regulation Authority: SRA Code of Conduct for Solicitors, RELs and RFLs
Consejo General del Notariado: El notario
Notaría Llopis: Las relaciones del notario con otros profesionales legales #retoblog
Now some questions spring to mind:
How much of partial equivalents are ‘notary’ and notario?
Can you translate ‘notary’ by notario? If so, in which contexts?
Whether notario is a partial equivalent and a good translation of ‘notary’ will depend on the type of text, the context and the goal of the translation. A thorough analysis will help the translator decide which strategy to choose.
In non-legal contexts where the differences between a notary and a notario are deemed too small to create any issues (i.e. English language teaching materials, film subtitles, a novel), notario could be a perfectly fine translation of ‘notary’.
However, in legal contexts where the role of a notary is relevant (i.e. English notarised documents), notario wouldn’t be a partial equivalent, because, as seen above, their roles differ widely. By translating ‘notary’ as notario, the translator would be matching notaries and notarios qualifications, roles, and activities, making the recipient of the translation assume they’re equivalent professions. In this case, a different translation strategy should be used.
3. Fake equivalents: equivalents in general language but not in legal contexts
By ‘fake equivalents’ I’m referring to words in different languages with a shared meaning in general language and different meanings in legal contexts.
‘Remedy’ and remedio
In general language, both can refer to a medicine or treatment for a disease or a solution to a problem. A ‘home remedy’ is a remedio casero.
In legal language, they mean different things. On one hand, ‘remedy’ is, according to the Black’s Law Dictionary, ‘the means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.’ It could be translated into Spanish as medidas resarcitorias, when not specifying the type of remedy (‘equitable remedy’ doesn’t exist in Spanish). On the other hand, remedio is a legal concept which doesn’t exist in English. It could be translated as ‘reconsideration appeal’, as it’s a petition for reconsideration heard by the same court that issued the decision being appealed.
4. Legal false friends
These are legal terms which have a very similar spelling in different languages. You think ‘surely they must be equivalent?’ but then you start researching and find out that, not only they aren’t equivalents, but they mean something completely different. Or you discover that they can be equivalents but only in certain cases. The job of the translator is to research all possible meanings of both the English and the Spanish terms and decide whether in that particular case, they’re equivalent or not, and adopt a strategy accordingly.
Some examples of legal false friends:
‘Jurisprudence’ and jurisprudencia. The Spanish term Jurisprudencia refers to case law.
‘Jurisdiction’ and jurisdicción. When referring to a geographic area within which political or judicial authority may be exercised, they can be equivalents. However, when ‘jurisdiction’ refers to a court’s power to decide a case, they’re not and ‘jurisdiction’ could be translated as competencia.
‘Competence’ and competencia. The Spanish term competencia means ‘competence’ when referring to the ability to do something and, as seen above, it’s equivalent to ‘jurisdiction’ when referring to a court’s power to decide a case. Competencia can also mean ‘powers’, as in competencia decisoria (‘decision-making powers’), and ‘competition’, as in competencia desleal (‘unfair competition’).
5. Polysemic words
The word ‘legal’ may have several different meanings, even within the same document, depending on which other word it describes. It may refer to, for example, something required by the law, something relating to the law, something permitted by the law, something legal as opposed to general, or something legal as opposed to equitable. The fact that ‘legal’ can convey all those meanings in English doesn’t mean that the Spanish language has one single word to cover all of them.
Here are some examples of expressions including the word ‘legal’ and their Spanish translation.
‘Legal translator’ translates as traductor jurídico.
‘Legal notice’ translates as notificación oficial.
‘Legal owner’ translates as propietario legítimo.
‘Legal act’ translates as acto lícito.
‘Legal age’ translates as mayoría de edad.
‘Legal requirement’ translates as imperativo legal.
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IRENE CORCHADO RESMELLA is a Spanish translator based in Oxford. A Chartered Linguist and member of the CIOL, she is also an English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs. Irene specialises in sworn and legal translation (particularly in wills and succession) and is an Affiliate member of STEP. ICR Translations is registered with the Information Commissioner's Office and has professional indemnity insurance.