Civil-law notary terms can be tricky to translate into English. This is because the notary systems in civil- and common-law countries differ. Civil-law notaries have a more wide-ranging role than their common-law counterparts. So you come across terms that don’t have equivalents in English, i.e., non-equivalent terms.
How do you translate non-equivalent terms? The main thing is to get the meaning across to the reader. The key to getting meaning across is understanding the term yourself. So background knowledge is needed to translate non-equivalent terms, which is why this post provides a bit of explanation as well as suggested translations.
And the translations are only suggestions, starting points, if you like. How you translate non-equivalent terms often depends on the context. So you may need to tweak the suggestions from one context to another. Again, the only way can do this is by arming yourself with enough background knowledge.
Credit where it’s due
The post is mainly informed by the book Spanish Law for Notaries by Javier Pérez-Manglano (pp. 44 and 45), unfortunately now out of print. The references for the dictionaries and other sources used are at the bottom of the page.
An acto notarial is any kind of notarial act, i.e., any document executed before or certified by a notary public. There are three types of actos notariales.
Types of actos notariales
1. Escritura pública
An escritura pública is a notarial act or “instrument used for statements of will, transactions which require express consent of the parties, contracts and other acts and things of any (legal) nature” (Pérez-Manglano, p. 44), which is basically what the source legislation says:
Las escrituras públicas tienen como contenido propio las declaraciones de voluntad, los actos jurídicos que impliquen prestación de consentimiento, los contratos y los negocios jurídicos de todas clases. Article 144, Royal Decree 45/2007
Escrituras públicas are executed in “public form”, which means that “an original is retained in publica custodia by the notary in his or her protocol or recorded with a public registry” (Wikipedia). In contrast to “private form”, in which “a single original is issued directly to the appearer(s)” (Wikipedia). (See this post for more about public and private form.)
Examples of escrituras públicas include powers of attorney, bills of sales, wills and company documents (e.g., for incorporating a company or amending its articles of association).
You can translate escritura pública as “notarial instrument” or some version thereof (e.g., “notarially-recorded instrument”). Both these suggestions come from West (p. 245).
However, when you need to translate the names of the different types of documents, you may be able to use standard English equivalents, e.g., “will” or “power of attorney”. On other occasions, you might want to be more descriptive.
Take, for instance, escritura de constitución, the instrument executed before a notary (in public form) to incorporate a company. I normally translate it as “notarial certificate of incorporation”, which makes use of the common-law term “certificate of incorporation” but also lets the reader know a notary is involved.
You could go even further and signpost that the document is in public form by adding “public form” or maybe just “public” at the beginning (i.e., “public (form) notarial certificate of incorporation”). [UPDATE: As I explain here, I now wouldn’t recommend using “public” or even “public form” in this context.] But I don’t think this is usually necessary for this term. Particularly if, for example, the term is just part of the identification details in the introductory clause of a contract.
However, on certain occasions you might want to highlight that a document is being executed in public form. Especially where similar documents are not in public form in common-law systems.
2. Acta notarial
Not to be confused with acto notarial, actas notariales are certificates issued by notaries. They are certificates “of fact or opinion, made by the notary, where the contents cannot be classified as an act of some other party or as a contract” (Pérez-Manglano, p. 44). Again, this is roughly what the legislation says:
Las actas notariales tienen como contenido la constatación de hechos o la percepción que de los mismos tenga el notario, siempre que por su índole no puedan calificarse de actos y contratos, así como sus juicios o calificaciones. Article 144, Royal Decree 45/2007.
Jowers defines and gives some examples of actas notariales (and their translations) in this post on her blog:
…acta notarial refers to a notary’s certification of a given event, such as an Acta notarial de la Junta General (the minutes of a shareholders meeting taken and certified by a notary public); Acta notarial de deslinde con citación de colindantes (notarial certification of property boundaries made in the presence of abutting property owners) or Acta notarial de subasta (which records an auction conducted and certified by a notary).
So a starting point for translating the names of this type of document would be “notarial certificate” (West) or “notary’s certificate” (Alcaraz and Hughes). You might also simply say a document was “certified by a notary public”, as Jowers does in a translation in the above quote.
3. Póliza intervenida
Mentioning this type might cause more confusion that it’s worth given that you may never have to translate this term. But I’ve included it for completeness (the three types).
In this case, a póliza is a contract or even just a document. Intervenida is short for intervenida por notario and means that a notary public is involved or intervenes. So a póliza intervenida is a contract or document you sign before a notary. But it’s not any kind of contract or document signed before a notary. Póliza intervenidas are business or financial contracts signed with financial institutions, as the legislation states:
Las pólizas intervenidas tienen como contenido exclusivo los actos y contratos de carácter mercantil y financiero que sean propios del tráfico habitual y ordinario de al menos uno de sus otorgantes, quedando excluidos de su ámbito los demás actos y negocios jurídicos, y en cualquier caso todos los que tengan objeto inmobiliario; todo ello sin perjuicio, desde luego, de aquellos casos en que la Ley establezca esta forma documental. Article 144, Royal Decree 45/2007.
This includes certain types of loans, leases, bank guarantees, insurance policies and other banking documents, but excludes, notably, anything to do with real property.
Instrumento público/documento público
All notarial acts are public instruments but not all public instruments are notarial acts. In Spanish, as in English, “public instrument” can refer to other documents issued by civil servants, not just notarial documents in public form.
However, Manglano-Peréz points out that the legislation seems to prefer the term instrumento público to acto notarial and uses it even when it refers only to notarial acts. You can see how this usage bleeds into the wording of notarial acts and contracts, where instrumento público may refer to a notarial act.
Thus, “notarial instrument” or something similar will often be the most appropriate translation for instrumento público. It’s more specific than “public instrument” as it gives more information about what the instrument is. Just keep in mind that an instrumento público can refer to other things. You may sometimes want to translate it as “public instrument”.
Elevar a (escritura) público
Elevar a público means to record a document in “public form”, which we talked about above.
Your translation of elevar a público will depend on the context. West (p. 234) gives the following suggestions:
- To have the document recorded by a notary
- To have the document put in the form of a notarial instrument
As mentioned above, you could, depending on the context, go further and signpost that the document is in “public form”. For instance, you could translate escritura de elevación a público de acuerdos sociales as “public form notarial act recording company resolutions” (Peréz-Manglano).
Whatever you do, don’t just use “notarise”. As Peréz-Manglano points out, there is a difference between notarising something and having it elevado a público. Notarising may refer to any type of certifying by a notary, including in private form (where no official registration is made). [UPDATE: Having thought more about this, I think “notarise” can be quite useful and is unlikely to cause confusion in legal translations obviously about Spain, as long as readers understand “notarised by a Spanish notary” from the text and context.]
This last point might make the translation of “notarial instrument” not specific enough in some cases. As stated above, most Spanish notarial instruments are in public form. So you will have to take the context into account and decide whether it’s necessary to highlight that the document is in public form. A slightly more concise way of doing this is to add “official” or “public” instead of “public form” (e.g., “public notarial instrument”). [UPDATE: As I said above, I would usually now steer clear of “public” and “public form” in most legal translations. See this post.]
Enrique Alcaraz Varó and Brian Hughes (2007) Diccionario de Términos Jurídicos, A dictionary of Legal Terms, 10th edition.
Javier Pérez-Manglano (2012) Spanish Law for Notaries: An Overview of the Spanish Legal System and a Practical Guide to Spanish Documents and Transactions,
Miguel Ángel del Arco Torres (ed.) (2009) Diccionario Básico Jurídico.
Rebecca Jowers Léxico Jurídico Español-Inglés …a site for exploring legal terminology (a blog).
Real Decreto 45/2007, de 19 de enero, por el que se modifica el Reglamento de la organización y régimen del Notariado, aprobado por Decreto de 2 de junio de 1944.
Wikipedia. Civil law notary. https://en.wikipedia.org/wiki/Civil_law_notary