by Lic. J.
Beaulne LL.B
WRONG LEGAL EXPRESSIONS, TERMS AND WORDS
For years, foreigners while talking about real estate and business set ups,
in Baja California Sur and the rest of Mexico, have been translating Spanish
expressions, terms and words, not knowing exactly the proper English
expressions, terms and words that should, not to say must, be used.
When speaking in general terms, although not correct, there are no big
consequences if one does not use the proper terminology but, when taking
about legal matters it can be the contrary and the consequences can be
disastrous.
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limited to see that the value of his share of the corporation goes up
in value and to collect dividends, if dividends are to be paid, and the
concept of a partnership where each partner is responsible to his partner
the difference is very big.
The second reason for using the proper word “partnership” and not the
“Mexican corporation” expression is that the listener must be informed
correctly of the real consequences after forming the partnership especially
about the right to sell his part to a third party. In a Corporation one can
sell his share as he likes and when it suits him or her. In a “Sociedad”
(partnership) he must ask for the consent of all partners…thus a very BIG
difference. Finally the partnership dies automatically when only one partner
is living… Why use two words if one is enough and most correct? Remember
“partnership” is the word…
C) Now let us go in deeper in the partnership set up. The letters S.A. de
C.V. or S.A. de R.L. are constantly used after the name of a partnership.
What do they mean? First of all lets look at the expression S.A. de C.V.;
the S stands for “Sociedad” translated in proper English: Society; the A
stand for “Anonimus” which is the same word and meaning in English except
that a “y” is used instead of an “i”; the C. is for “Capital” which is the
same word and meaning in Shakespeare’s tongue; the V stands for “Variable”
again a Spanish word that translate
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After years of hearing people expressing the wrong legal terminology
and telling “white lies” I decided to write this article and maybe in the
future hear correct translations of legal expressions, terms and words and,
my hears will stop hurting.
One can ask himself why people use the wrong expression, term or word. There
is one main reason; the lack of vocabulary but in the real estate business
there is a different reason. The first foreign persons who installed
themselves as brokers and agents decided that to sell it is important to
make the people feel safe and that the only way that the client was to feel
safe is to use terms the client is used to hear…and most of them could care
less that while the client fells safe he is not informed correctly…
Before starting the list of the proper expressions, terms
and words that should (must) be used let us start with the signification of
accents on letters that we find in Spanish words. Said accents on letters
indicate that there is an emphasis on the letter. In other word you must
express the letter using a bit of a lift in the tone of your voice when
speaking the word, this is normal in a Latin language. We say Latin people
sing while they speak…
Now that we have established this the reader can practice Spanish and while
doing this exercise he can also find out the proper English expression, term
and word that he should use and, the reason for using the proper word(s).
A) “Notario Público”, the proper English translation for this association of
words is: Contract lawyer. Why? Because if one uses the word NOTARY it
confused the person who is listening. Why? Because a NOTARY in the Common
law system ( American Law and Canadian Law) is not the equal of the “Notario
Público” in Mexico. Why make such a fuss: Because a NOTARY provides a
service to prove that the person signing a document is the correct person
and he is not responsible of the content in the document and, his service is
free.
The “Notario Público” is a person who studied law, became a lawyer after
many years studying law in a university then worked for a “Notario Público”
for a certain period as an assistant, passed exams and then was given a
position as a public officer called “Notario Público”. Actually why can one
use the expression “Notario Público” when talking about him…it is not so
hard…and it is proper to respect the profession and. if one has a problem
using the Spanish term at least use the proper association of words to make
sure that the listener has in his mind the proper picture: Contract lawyer.
B) We hear all the time the expression “Mexican corporation” to indicate a “Sociedad”.
The foundation of the law system in Mexico is the Roman law system, this
been said we do have some influence from the Common law system from England
but not to the extend of having “Mexican Corporation”. The proper
translation for a “Sociedad” is “society” thus in legal matters the word
used to illustrate a society between associates in business the term
PARTNERSHIP is the proper word to use.
What is the difference one may ask? The first reason is that in Roman law
the corporation concept does not exist where a person or several persons can
form an entity. In Mexican law the formation of an entity becomes a “persona
moral” (moral person) formed by a minimum of two physical persons thus the
formation of a “partnership”. Also when comparing the “corporation concept”,
where each “share holder” responsibility is
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exactly the same in English…not so hard this Spanish… As for the
expression S.A. de R.L., the first two letters have
the same meaning as in the previous expression. As for the R it represents
the word “responsabilidad” which translate to Responsibility and the L
translate to limited thus the proper translation for the first expression is
Anonymous Society of Variable Capital and the
second expression means Anonymous Society of Limited Responsibility.
D) The last expression that I will illustrate in this article is one that
makes my hears hurt real bad when I hear the words: “Bank Trust”. This
expression is so far from the truth that it should be banned legally. The
said expression is used to describe the document that one can or must obtain
to acquire a personal Right over a real estate property in the restricted
zones in the territory of Mexico which have been established in article 27.1
of the Constitution of the Mexican Republic.
First of all let us say that the established system is the
only legal and safe system as per the “Ley de Inversiones Extrajeras”
(Foreign investment law) in Mexico for a foreigner to acquire the right to
use a real estate property. This been said lets go back to translation of
the real expression “CONTRATO DE FIDEICOMISO TRANSLATIVO DE DOMINIO”. In
this expression we can read the word “contrato” which translate in English
as “contract” the third word “translativo” can be expressed in English by
the expression: “that translate” and the last word “dominio” can be
expressed as “Domain”.
Now we can associate the words: “contract that translate the domain”. What
kind of a contract? A “Fideicomiso contract. A what you say?...Yes this word
is not easy for the Anglophone person…to translate this Spanish word the
people from a common law back ground use the word “Trust” thinking that it
is the correct word. The use of this word is wrong because a “trust” in the
common law system is not a contract and, we are not in a common law system
we are in a Mexican law system in which the word trust can not be found. So,
how can one explain to a non speaking foreigner what type of document he or
she will get to permit her or him to acquire real estate property in the
Restricted zones if he should not use the word “trust” or “bank trust”…the
answer to this dilemma is very easy by using an expression called: “FTD
contract” and explain how it works to the client so that he gets the right
picture and not becoming an other horror story teller…
LIC. JAQUES-EDOUARD BEAULNE, LL.B.
Abogado / Attorney at Law / Avocat
In Mexico.
Ced. Prof # 0086
Law Professor
Puerto Vallarta - 044-322-227-6531
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