Legal terms that don’t translate

Consideration

Common law

In common-law systems, a promise is usually enforceable as a contract only if each side gives something of value in return: money, a promise, or giving something up. That 'something' is called consideration.

Compared with: France, Germany, Spain and Italy

Trust

Common law and equity

A trust splits ownership in two. A trustee holds legal title to property, but must manage it for the benefit of someone else (the beneficiary), who has an equitable interest.

Compared with: France and Quebec, Germany, Latin America, Japan

Equity

English law

In England and its former colonies, equity is a body of rules developed by the old Court of Chancery. It adds remedies and doctrines that the common-law courts did not provide: trusts, injunctions, specific performance and more.

Compared with: France, Germany, Spain

Tort and delict

Common law (tort) and Roman-based systems (delict)

Both words describe civil wrongs that cause harm and lead to compensation, outside of contract. Common law builds this out of separate wrongs (negligence, nuisance, defamation and so on). Civil law usually starts from a general rule.

Compared with: France, Germany, South Africa and Scotland

Good faith

Civil law

In many civil-law countries, a general duty of good faith runs through the whole law of contracts: in negotiating, performing and ending them. A court can use it to fill gaps and correct unfair results.

Compared with: Germany, France, Spain, England and the United States

Estoppel

Common law

Estoppel stops a person from going back on something they said or did when another person has relied on it. It comes in several kinds, including promissory estoppel and estoppel by representation.

Compared with: Germany, Spain, France

Amparo

Spanish-speaking legal systems

A special court action that lets a person ask a judge to protect their constitutional rights quickly against the government. The Spanish word means 'protection'.

Compared with: Mexico and Argentina, Spain, Colombia, Brazil, Germany

Rechtsstaat

German law

A state in which public power is bound by law, rights are protected by courts, and the administration must act on a legal basis. It is usually translated as 'rule of law', but it carries a slightly different emphasis.

Compared with: France, Spain, Italy

Droit, Recht, Derecho, Diritto

Continental European languages

In French, German, Spanish and Italian, one word covers both 'law' as a whole and 'a right' that someone holds. English has two separate words, law and right.

Compared with: France, Germany, Spain and Italy

Notary

Civil law (Latin notary)

In civil-law countries, a notary is a trained legal professional and a public officer. They draft and authenticate important documents, such as property sales, wills and company documents, which then have special legal force.

Compared with: France and Germany, United States, Latin America and Spain

Prosecutor

Civil law and common law

The prosecutor decides whether to bring a criminal case and presents it in court. The role looks the same everywhere but its legal position differs.

Compared with: France and Italy, Germany, United States

Jury and lay judges

Common law (jury) and civil law (lay judges)

Both systems let ordinary citizens take part in trials, but in different ways. A jury of citizens decides the facts alone, apart from the judge. Lay judges sit with professional judges and decide together.

Compared with: Germany, France, United States and England

Discovery

United States and other common law

A pre-trial stage in which each side can demand documents, written answers and testimony from the other. It is a major feature of American civil litigation.

Compared with: Germany, France, England

Punitive damages

United States and other common law

Money awarded on top of compensation, to punish a wrongdoer and deter others. It is a feature of some common-law systems, especially in the United States.

Compared with: Germany, Italy, France

Adverse possession and usucapion

Common law (adverse possession) and Roman-based systems (usucapion)

Both let a person who has occupied land (or goods) for a long time become its owner. Common law calls it adverse possession. Civil law uses 'usucapion' or acquisitive prescription.

Compared with: France, Germany, Spain

Real rights and personal rights

Civil law (ius in rem, ius in personam)

Civil law splits rights into real rights (rights in a thing, enforceable against everyone, like ownership or a mortgage) and personal rights (claims against a particular person, like a debt).

Compared with: France, Germany, United States and England

Obligation and Schuldrecht

Civil law

In civil law, an obligation is a legal bond between two people, in which one (the debtor) owes something to the other (the creditor). The 'law of obligations' covers contracts, torts and unjust enrichment together.

Compared with: France, Germany, United Kingdom

Force majeure and frustration

French law (force majeure) and English law (frustration)

Both deal with what happens to a contract when something outside the parties' control makes performance impossible or very different. They do it in different ways.

Compared with: France, Germany, England, United States

Stare decisis and jurisprudence constante

Common law and civil law

Stare decisis is the common-law rule that courts follow earlier decisions of higher courts on the same point. 'Jurisprudence constante' is the civil-law idea that a steady line of consistent decisions deserves respect.

Compared with: France, Germany, Ethiopia

Fiduciary duty

Equity

A duty of loyalty owed by someone in a position of trust, such as a trustee, a director or an agent. They must put the other person's interests first and avoid conflicts and secret profits.

Compared with: Germany, France

Mens rea and Vorsatz

Common law (mens rea) and German law (Vorsatz)

Both describe the mental element of a crime: what the offender knew and intended. Common law has a family of terms (intention, knowledge, recklessness). German law separates different forms of Vorsatz and treats 'Schuld' (culpability) as a separate step.

Compared with: Germany, England, France

The reasonable person

Common law (and its civil-law counterpart)

A standard of ordinary care and prudence against which a person's conduct is judged. Common law calls it the reasonable person. Roman-based systems traditionally used the good head of a family.

Compared with: France, Germany, England

Waqf

Islamic law

An endowment in which a person dedicates property (or its income) permanently to a charitable or religious purpose. The property can no longer be sold or inherited.

Compared with: Egypt, Saudi Arabia, England and the United States

Riba

Islamic law

A term for gain from lending that Islamic law forbids. It is often translated as 'interest' or 'usury', and the translation is itself a subject of scholarly debate.

Compared with: Saudi Arabia, Egypt, England and the United States

Adat

Indonesian, Malaysian and related legal systems

Local custom that governs family, land and community life, and that the law in several countries recognises. The word comes from Arabic but has a local meaning in Southeast Asia.

Compared with: Indonesia, Malaysia

Ubuntu

Southern African law and philosophy

An African idea that a person is a person through other people, stressing community, dignity and mutual care. South Africa's Constitutional Court has referred to it when interpreting constitutional values.

Compared with: South Africa