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Abstract
The main objective of this article is to analyse the drafting and translation of private legal documents in Spain (mainly from Spanish to English) in order to determine their legal effectiveness and to identify specific traces of hybridism. The hybrid conditions allow us to understand a target text (TT) which shows hybrid characteristics. The source text (ST) being hybrid, the translation assignment or practice determines an additional hybridization in the TT. As hybrids, such documents interest us in several aspects: the law that regulates the document, the cultural elements, the style, the language, and the translation practice. The focus of this article is on private legal documents, and the main case study is a will that has been drafted in two valid versions, since this may show a higher degree of hybridization. We observe how the TT becomes even more hybrid, mainly due to functional reasons as the common-law addressee enters the scene, how a hybrid text may be achieved, and how hybridism is not only harmless but desirable.
Notes
1. ‘Cultural identity indicates a community's awareness and pride in its own unmistakable features and an individual's sense of belonging to that community, whether by birth, language or territory–but implies that it is still able to communicate with and exist in harmony with other communities in the world around (hence it is not bound by either the uniformity of globalism or the destructive aggressivity of tribalism)’ (Baker, 1999).
2. The Spanish counterpart is the principle of ‘autonomía de la voluntad’.
3. According to the principle of locus regit actum, English citizens may resort to a Spanish notary in order to issue an Escritura Pública (a public and solemn document which provides for maximum guarantees). Notaries are privileged witnesses of the execution of documents who also verify the capacity of the parties and the contents of the document. They provide an extraordinary guarantee which is not known as such in the common law deed through the following ritualistic formula: ‘I, the notary, certify that I know the testator and the witnesses, and that the unity of act and further formalities and solemnities of the law have been observed and all that is expressed in this public instrument. I BEAR WITNESS. Signed: Luis (…)’ The notary will normally formalize the document in two versions, producing a co-drafted document.
4. According to Tirkkonen-Condit (Citation2001): ‘Intercultural communication gives rise to the development of new text types and genres (…) they manifest linguistic and rhetorical features which are felt to be foreign.’
5. In Chapter IV of the Preliminary Title of the Civil Code, you can find the private international rules that provide for the law applicable to each legal issue. Thus, Section 9.8 sets out that ‘Succession shall be ruled by the national law of the testator at the time he/she dies, no matter what the nature of the property is and the country he/she are in …’.
6. In Mr. Burton's will, the notary is oriented towards Spain. We can see that in the fact that, although the testator is an English person who draws up his will pursuant to English legislation and the notary interprets correctly the intention of the testator according to English law, he keeps including Spanish cultural values, such as the albacea contador partidor and the aceptación de la herencia. Thus, the notary, in practice, expresses the essence of the testator's will, but his/her drafting includes Spanish institutions. Nord warns us about that: ‘… if the sender asks an expert on text production (e.g. a ghost-writer) to write the text for him, a discrepancy may occur between the sender's intention and its realization by the text producer. The sender may also allow the text producer to have a certain scope of stylistic creativity, which is then reflected in the formulation, even though it does not depend directly on the sender's intention’ (Nord, Citation1991, p. 5).