In Search of the Right Equivalent for Legal Terms: Bridging the Gap or Creating False Expectations?
By Silvia M. Slack
Three issues must be dealt with in order to translate legal documents: how to translate legalese, when to choose a functional equivalent (a concept with the same or similar functions) or a transliteration, and how to deal with semantic holes or the lack of good functional equivalents in the target language.
First, there is the problem of the difference between how language is used in legal documents and in real life. If the source document is written in Mexican legalese, should I use American legalese? To some, the answer may seem obvious: Translations must convey to the reader the style and register of the original.
If so, how should we translate the phrase “en mi nombre y representación,” used in Mexican powers of attorney? When researching parallel documents (documents used in the same area of law for similar purposes), I found power of attorney forms published more than 10 years ago that used the phrase “in my name, place, and stead.” However, certain attorneys have criticized this translation, prefer “in my name and on my behalf.” Both are correct, and both are found in legal documents written originally in English, but one is more understandable to the non-lawyer.
In the U.S., there is an increasing awareness of the importance of avoiding legalese in order to communicate with the lay person. This is evidenced by the language used in the Illinois statutory power of attorney forms for property and for health care. These forms are part of the Illinois Power of Attorney Act, which has been drafted specifically to communicate to the lay person. In both forms, the old “in my name, place, and stead” has been substituted by “[to act] for me and in my name (in any way I could act in person)." Furthermore, the term “attorney-in-fact” is redefined in the document as “agent.” Though certain archaic expressions sound beautiful, it is good to test the translation on an attorney who writes in plain English instead of legalese.
Second, the translator faces the decision of whether to equate a particular entity or title in the source document to a similar entity or title in the country of the target audience or simply to transliterate the term used in the source document.
When translating the term “corporation” used in the U.S. for a Latin American business person, what equivalent should one use? The most common translation of the U.S. term “corporation” into Spanish is “corporaciones." This is a simple transliteration of the American term and does not create confusion. However, if one were to apply the same criteria when translating “sociedad anónima” to English, one would come up with “anonymous society,” which would either leave the reader in the dark or create a misconception. In the U.S., “society” is never used for business corporations, and only occasionally for not-for-profit associations of professionals.
Before choosing a particular translation, the translator must pose the following question: How can I bridge the gap between the two systems, providing the reader with meaningful information without creating false expectations?
For purposes of clarity, when translating the term "sociedad anónima” used in Mexico (except when it is part of a specific company’s name) for an American business target audience, I would propose that the best option is to call it a Mexican business corporation, followed at least once in the text by the name of that business entity in Spanish (“sociedad anónima”). By qualifying it as a “Mexican" business corporation, the reader is warned that it is a corporation organized under the laws of Mexico, and therefore, cannot necessarily predict all the workings of the corporation just because it is called “business corporation."
In the case of translation of corporate titles, a corporate title that can create problems in translation is the Mexican term “administrador único." In Mexico, when a company chooses to have a one-person board of directors ("consejo de administración”), this “sole director” automatically assumes not only the powers and authorities of the board of directors, but also the highest executive powers, such as those of a CEO or president of an Illinois corporation. Furthermore, since both positions are combined into one, there is no need for a resolution from the sole director authorizing the CEO or president to act or sign any kind of document. In the cases in which I have seen people transliterate “administrador único” into “sole administrator,” the term is not meaningful to the target audience (U.S.-based business people or attorneys). There is no such thing in typical U.S. domestic corporations. As a result, these U.S. business people have had to call their attorneys to inquire whether the “sole administrator” required resolutions to authorize him or her to act in certain instances.
Since the transliteration “sole administrator” leaves the reader in the dark, I have chosen to translate "administrador único” as “Sole Director and C.E.O.,” followed at least once by the Spanish "administrador único” so that if the readers come across the Spanish term they will recognize it.
The third problem is the most serious: how does one talk about concepts for which there is no equivalent in the legal system of the country of the target audience?
Continuing with Mexican business corporations, one term that creates lots of problems for translators is the term “comisario.” A “comisario” is someone who is not a shareholder, a member of the board of directors, an officer, or an employee of the corporation, and who is not related by blood or employment to anyone holding any of the positions listed above. This “comisario” is appointed by the shareholders to oversee the performance of the directors and officers. At the annual shareholders’ meeting, the “comisario” must submit an opinion on the financial statements and overall condition of the corporation.
Since there is not an equivalent term in American corporate law, some translators have looked for equivalents outside corporate law, such as “examiner” or “external auditor.” In my opinion, the best solution is to leave the term “comisario” in Spanish, and add an explanatory footnote. As a matter of fact, Black’s Law Dictionary often leaves words untranslated and defines them as terms used in Spanish or French law. (Black’s Law Dictionary, 6th edition, has an entry for “commissaire” and explains its meaning under French law.)
Another term that causes problems in translations of legal documents from Spanish is the term "escritura.” "Escritura” could mean a variety of things, since an “escritura pública” can be any type of document, including articles of incorporation and bylaws, powers of attorney, and deeds, entered by a notary public as a numbered entry in an official book called “protocolo.” If the document entered in the “protocolo” serves the purposes of a deed, calling it a deed is acceptable. However, in reference to a power of attorney, the term deed would be totally out of place. Within documents identified as “escritura pública,” I have noticed that notaries use the term "instrumento” as a synonym. Therefore, I translate the occurrences of “escritura pública” that do not have the function of a deed or of articles of incorporation and bylaws as “public instrument," adding an explanatory footnote.
In conclusion, when translating legal documents, I would recommend application of the following guidelines in order to maximize understanding and avoid false expectations:
- Be aware that in the U.S. there is a trend away from legalese. Therefore, the translator has certain freedom regarding which terms to use in English, as long as they are defined clearly in the document itself.
- Before looking for an equivalent, research all the meanings attached to the word to be translated, such as procedures involved and effects.
- When looking for an equivalent, look first at transliteration and only use it if it creates no false expectations and if it carries some meaning in the target language. If the differences are minimal, note them in an explanatory footnote.
- If no transliteration is possible or recommendable, look first for a functional equivalent by researching parallel documents and laws. If a functional equivalent is not a full equivalent, clarify the differences in a footnote.
- If no transliteration is appropriate and there is no functional equivalent, look for synonyms in the source text and analyze their possible transliterations or functional equivalents as indicated above.
- If there is no possible functional equivalent of a term or any of its synonyms, leave the term in the original language and provide an explanatory footnote.
- Any explanatory footnotes should clarify what the term is and what it is not, with respect to the equivalent (functional or transliterated) in the target audience’s legal system or culture.
- If the purpose of the document is to instruct someone on foreign law, provide the term in the original language in parenthesis upon its first occurrence in the text.
A good translation can save a client lots of money in attorney fees, by using an informative, non-misleading equivalent right from the start.