Globalisation has significantly increased the interaction between the legal systems of different countries. In Spain it is common to come across contracts drafted in English, particularly in commercial transactions and international agreements. Translating these documents accurately is essential if all parties are to understand and meet the obligations set out in them. Because of the differences between the common-law and Spanish legal systems, however, mistakes in contract translation are frequent. This article looks at the most common mistakes made when translating common-law contracts in Spain, highlights the differences in form, and gives examples of legal terminology that has no direct equivalent in Spain and tends to cause confusion.
In the legal field, every word counts. A badly translated contract can change the meaning of a clause, but it can also lead to misunderstandings, legal disputes and, in the worst case, an invalid agreement. Legal translation is not simply a matter of moving words from one language to another; it requires a thorough knowledge of the law in both legal systems to guarantee accuracy and certainty. If you need a faithful, clear translation aligned with Spanish law, put your trust in specialists. You can read more about how to order a translation from our professional translation agency, step by step, in our step-by-step guide on our blog.
Differences between the common-law and Spanish legal systems
To understand the challenges involved in translating contracts, you first need to know the differences between the source and target legal systems.
The common-law systemCommon Law)
The Common Law is based on judicial precedent. Court decisions set case law and are binding in future cases. The system is flexible and evolves with every new ruling. Contracts under the Common Law tend to be detailed, anticipating a range of contingencies in order to avoid unfavourable judicial interpretation.
The Spanish legal system
The Spanish legal system is founded on written codes and statutes. Case law plays an interpretative role but does not create law. Contracts in Spain tend to be more concise, relying on the general provisions of the law to fill in details that are not specified.
Common mistakes when translating common-law contracts
When translating contracts from English into Spanish, a number of mistakes can be made that affect the clarity and validity of the document.
1. Translating terms literally without considering the legal context
A frequent mistake is to translate terms literally, without taking into account their legal meaning in the source system and their equivalent in the target system. Translating “consideration” as “consideración”, for example, is wrong, because under the Common Law it refers to the subject matter of the contract, or the counter-performance.
2. Not knowing the contractual structures specific to each system
Common-law contracts often include clauses and structures that have no direct equivalent in Spanish law. “Indemnity” clauses, for example, can have different implications in each legal system. A translation with no adaptation may lead to misunderstandings or leave the clause unenforceable in Spain.
3. Misusing false friends
False friends are words that look alike in both languages but mean different things. “Eventual” in English means final or definitive, whereas in Spanish it refers to something possible or contingent. Confusing these terms can alter the meaning of a contractual clause.
4. Leaving out specific technical terms
Some technical expressions in common law have no direct translation into Spanish. A “trust”, for example, is a legal institution that does not exist in Spanish law. Translating it simply as “fideicomiso” may fail to reflect all the features of a common-law trust. These terms need to be explained or adapted in order to preserve legal accuracy.
5. Lack of cultural and legal adaptation
Contracts contain not only legal terms but also cultural references and specific commercial practices. References to “Thanksgiving” as a deadline in a US contract, for example, would make no sense in Spain. Adapting these references to the Spanish context is essential if the contract is to remain relevant and comprehensible.
Legal terminology with no equivalent in Spain
Below are some common-law terms that have no direct equivalent in the Spanish legal system and that tend to cause confusion.
1. Consideration
Under the Common Law, “consideration” refers to the benefit or detriment each party receives or assumes on entering into a contract. It is an essential element for the contract to be valid. Spanish law has no identical concept: a contract is valid on consent alone, provided it has lawful cause and subject matter.
2. Trust
A “trust” is a legal institution in which one person (the settlor) transfers ownership of an asset to another (the trustee) to be administered for the benefit of a third party (the beneficiary). This concept has no direct equivalent in Spanish law; institutions such as the fideicomiso may serve similar functions, but they differ significantly in structure and regulation.
3. Common Law and Equity
In the common-law system, Common Law refers to the body of law based on judicial precedent, while “Equity” is a complementary system that seeks justice in cases where the strict application of the Common Law would be unfair. Spain has no such duality; the entire legal system rests on written codes and statutes.
4. Punitive damages
“Punitive damages” are awards that exceed the actual harm suffered, granted in order to punish the wrongdoer and deter similar conduct in future. Spanish law makes no provision for this type of award; compensation is limited to making good the harm actually caused.
5. Estoppel
“Estoppel” is a legal principle that prevents a person from contradicting something they have previously asserted where another party has acted in reliance on that assertion. Spanish law has similar doctrines, such as the rule against going against one’s own acts, but there is no exact equivalent to common-law estoppel.
Recommendations for an accurate translation
To avoid the mistakes described above and ensure a faithful, workable translation of common-law contracts into Spanish, the following practices are recommended:
1. Work with a translator who specialises in law
Being bilingual is not enough; you need to know the terminology and the workings of both legal systems. A specialist legal translator will be able to identify conceptual differences and choose the best way of adapting them.
2. Avoid literal translation
Legal terms do not always have a direct equivalent. It is crucial to understand the meaning in its legal context and find the best way of expressing it in Spanish, even where that calls for additional explanation.
3. Consult legal sources and model contracts in both systems
Analysing legal documents in English and Spanish helps you spot patterns and keep terminology consistent. There are legal databases and specialist dictionaries that can serve as a reference.
4. Check the applicable Spanish legislation
Before assuming that a clause is valid in Spain, it is important to check it against the Civil Code, the Commercial Code and other relevant statutes to make sure it does not conflict with Spanish law.
5. Work with bilingual lawyers
Where there is any doubt, it is advisable to consult a lawyer with experience in international or comparative law. Legal advisers can clarify specific aspects of each contract and prevent misinterpretation.
If you would like to learn more about legal translation or improve your legal English, take a look at our other articles:
Frequently asked questions about translating contracts in English
A poor translation can create misunderstandings, clauses that are unenforceable in Spain or even a void contract. It can also lead to costly legal disputes.
The most frequent are literal translations of terms with no Spanish equivalent, contractual structures left out, the use of false friends, and a lack of cultural and legal adaptation.
“Consideration” has no direct equivalent in Spanish law. In context it can be rendered as “contraprestación” or “objeto del contrato”, although contracts in Spain do not need this element to be valid.
It depends on the content of the contract. Some clauses may be valid, while others could conflict with Spanish law and be unenforceable. Adapting the contract to local legislation is essential.
Common law is based on judicial precedent and on lengthy contracts that provide for multiple scenarios. Spanish law, by contrast, is founded on written codes, and contracts tend to be more concise, relying on legislation to fill any gaps.
In such cases you can explain it in a footnote, adapt its meaning using similar terms from Spanish law or, where relevant, keep the original term with a clarifying note.