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

Unjust enrichment

Roman law, in both traditions

The idea that a person who has received a benefit at another's expense, with no legal ground for keeping it, must give it back. It covers money paid by mistake, benefits received under a contract that turns out to be void, and many other cases.

Compared with: Germany, France, England and Wales, United States

Negotiorum gestio

Roman law, kept in civil law

Acting for another person without being asked, when that person cannot act for themselves, for example to protect their property while they are away. The person who acted can claim back their expenses, and must account for what they did.

Compared with: Germany, France, Scotland, England and Wales

Culpa in contrahendo

German and civil law (from Jhering, 1861)

Liability for fault during negotiations, before any contract exists. A party that breaks off talks in bad faith, or misleads the other side, can be made to pay the costs the other side wasted in reliance.

Compared with: Germany, France, England and Wales

Abuse of rights

French and German civil law

The idea that using a legal right can itself be wrongful if it is done only to harm someone, or in a way far out of proportion with the benefit to the right-holder.

Compared with: France, Germany, England and Wales

Penalty clause

Common law (penalty rule) and civil law (clause pénale)

A contract term that sets a sum payable if one side breaks the contract. The question every legal system has to answer is how far the parties can agree such a sum in advance, and what a court can do if it is too high.

Compared with: England and Wales, France, Germany, United States

Privity of contract

Common law

The rule that only the parties to a contract can enforce it or be bound by it. A stranger to the contract, even one it was meant to benefit, cannot sue on it.

Compared with: England and Wales, France, Germany, United States

Specific performance

Equity (common law) and civil law

A court order that a party actually do what the contract promised, instead of paying damages for not doing it.

Compared with: England and Wales, France, Germany

Easement and servitude

Common law (easement) and civil law (servitude)

A right to use someone else's land for a limited purpose, such as a right of way across a field. The land that benefits is the dominant land, and the land that carries the burden is the servient land.

Compared with: England and Wales, France, Germany

Mortgage and hypothec

Common law (mortgage) and civil law (hypothec)

A way for a lender to take security over land, so that if the borrower does not repay, the lender can have the land sold.

Compared with: England and Wales, France, Germany, Quebec and South Africa

Bailment

Common law

Handing over possession of an object, but not ownership, for a purpose, such as storage, repair or loan. The person who holds it, the bailee, must take care of it and give it back.

Compared with: France, Germany, Spain

Fee simple and ownership

Common law (estates) and civil law (ownership)

How a legal system describes the fullest right a person can have over land. Common law talks of 'estates' in land. Civil law speaks of 'ownership' of a thing.

Compared with: England and Wales, France, Germany, Australia

Torrens title

Australian law (from South Australia, 1858)

A system where the register of land is the title. If a person is registered as owner, the register is conclusive, and the state guarantees it. You do not need to trace past dealings to prove a title.

Compared with: Australia, New Zealand, Germany, United States

Doctrine

Common law (a rule) and civil law (scholarly writing)

In English, a doctrine is a legal principle, such as the doctrine of precedent or of estoppel. In French, German and Spanish legal writing, 'la doctrine', 'die Lehre' and 'la doctrina' mean the writings of legal scholars as a source that influences how courts decide.

Compared with: France, Germany, Spain, England and Wales

Jurisprudence

French, Spanish and Italian (case law) and English (philosophy of law)

In English, jurisprudence is the theory or philosophy of law. In French, Spanish and Italian, 'jurisprudence', 'jurisprudencia' and 'giurisprudenza' mean the case law, the body of decisions by courts.

Compared with: France, Mexico, Germany, United States

Juristic person

Civil law

An entity that the law treats as a person, able to own property, make contracts and sue, apart from the human beings behind it. Companies are the commonest example, but so are associations and foundations.

Compared with: France, Germany, England and Wales, Scotland

Code and statute

Civil law (code) and common law (statute)

A civil-law code is a complete, ordered statement of a whole area of law, such as the civil code or the criminal code. A common-law statute is a single Act that deals with a particular problem, usually on top of an existing body of case law.

Compared with: France, Germany, England and Wales, United States

Barrister and solicitor

England and Wales (and other common-law systems)

In England and Wales a barrister specialises in advocacy in the higher courts and in giving opinions, and a solicitor deals with clients directly and prepares cases. Other systems have one profession, or different splits.

Compared with: France, Germany, Spain, United States

Magistrate

Many systems, with different meanings

A word used for several different judicial officers. It may mean a lay judge, a junior judge, any professional judge, or even a prosecutor.

Compared with: England and Wales, France, Spain, United States, Singapore and Hong Kong

Attorney General

England and the common-law world

A senior law officer of the state. The role varies widely, from the government's legal adviser to the head of the justice ministry to a chief prosecutor.

Compared with: England and Wales, United States, India, France, Spain

Felony and misdemeanour

Common law (United States)

A traditional division of crimes by seriousness. In the United States a felony is generally a crime punishable by more than a year in prison, and a misdemeanor is a lesser one.

Compared with: United States, England and Wales, France, Germany

Plea bargaining

United States and other common law

An agreement in which a defendant pleads guilty, usually in return for a lighter charge or sentence, and so avoids a trial.

Compared with: United States, Germany, Italy, France

Hearsay

Common law

A statement made outside the court that a party tries to use to prove that what it says is true. The common-law rule is to exclude it, with many exceptions.

Compared with: United States, England and Wales, Germany, France

Class action

United States

A lawsuit brought by one or a few people on behalf of a large group with the same kind of claim, with the result binding all the group's members unless they opt out.

Compared with: United States, Canada and Australia, Brazil, Germany, France

Standing (locus standi)

Common law

The right to bring a case to court. A claimant must show a sufficient connection to the matter, such as a personal injury or a legal right affected.

Compared with: United States, England and Wales, India, France, Germany

Contempt of court

Common law

Behaviour that disobeys a court order or interferes with justice, such as ignoring an injunction, disrupting a hearing, or publishing material that could prejudice a trial. The judge may punish it directly.

Compared with: England and Wales, France, Germany

Injunction

Equity (common law)

A court order that tells a person to do something, or more often to stop doing something, backed by the threat of punishment for contempt. It can be temporary, until the case is decided, or final.

Compared with: England and Wales, France, Germany, Italy

Investigating judge

France and civil law

A judge whose job is to investigate a serious crime, gathering evidence for and against the suspect. The judge does not try the case: another court does that.

Compared with: France, Spain, Germany, England and Wales

Res judicata

Roman law, in both traditions

The rule that a matter that has been finally decided cannot be argued again between the same parties. It protects the finality of judgments.

Compared with: United States, England and Wales, France, Germany

Proportionality

German law (Verhältnismäßigkeit)

A test for when the state may limit a right. The limit must pursue a legitimate aim, be suitable and necessary to achieve it, and be proportionate overall: the benefit must justify the harm to the right.

Compared with: Germany, Canada, England and Wales, United States

Human dignity

German constitutional law (Menschenwürde)

The idea that every person has an inherent worth that the state must respect. In some constitutions it is the foundation for all other rights.

Compared with: Germany, South Africa, Israel, India, United States

Laïcité

French law

The French principle that the state is secular: it recognises no religion, funds none, and guarantees freedom of belief. It also expects public life to be neutral.

Compared with: France, United States, India, Germany, Turkey

Droit administratif

French law

A separate body of law that governs the state and its dealings with citizens, applied by separate administrative courts headed by the Conseil d'État.

Compared with: France, Germany, England and Wales, United States

Ordre public (public policy)

French and civil law

The fundamental rules and values of a legal order that parties cannot agree to override, and that a court may refuse to give up even when foreign law would otherwise apply.

Compared with: France, England and Wales, Germany, European Union

Judicial review

Common law and constitutional law

The power of courts to check the acts of other parts of the state. The phrase covers two different things: review of administrative action, and review of the constitutionality of legislation.

Compared with: United States, England and Wales, Germany, France

Tutela

Colombian law

A fast court procedure in Colombia that lets anyone ask a judge to protect a basic right from violation or threat. The judge must decide within a short time set by the Constitution.

Compared with: Colombia, Mexico, Brazil, United States

Habeas data

Latin American law

A constitutional remedy that lets a person see the personal information a public or private body holds about them, and ask for it to be corrected or deleted.

Compared with: Argentina, Brazil, European Union, United States

Sharia and fiqh

Islamic law

Sharia is the divine path, as revealed in the Quran and the example of the Prophet. Fiqh is the human effort of scholars to work out, from those sources, what the rules are in particular cases.

Compared with: Sunni schools, Shia law, Egypt, Saudi Arabia

Fatwa

Islamic law

A reasoned opinion on a question of Islamic law, given by a qualified scholar (a mufti). It answers a question put to the scholar.

Compared with: Egypt, India, Common law

Kafala

Islamic law

A way of taking in and caring for a child, who is not the carer's own, that does not make the child the carer's legal child. The child keeps their own family name and parentage, and has no rights of inheritance from the carer.

Compared with: Morocco and Algeria, International law, United Nations, France and Spain

Mahr

Islamic law

A sum of money or property that a husband promises to give his wife at marriage. It belongs to the wife. It is part of the marriage contract in Islamic law.

Compared with: Islamic law, Common-law courts, Germany

Gharar

Islamic law

Excessive uncertainty in a contract, about the existence, the quantity or the delivery of the thing being sold. Contracts with too much gharar are forbidden.

Compared with: Islamic finance, England and Wales, United States

Tikanga

Māori law (Aotearoa New Zealand)

The Māori system of law and values, covering right ways of acting, relationships between people and with the land, and how wrongs are put right. Its main ideas include mana (authority), tapu (restriction) and utu (balance).

Compared with: New Zealand, Australia, Canada

Gacaca

Rwanda

Traditionally, a community meeting on the grass to settle local disputes. After the 1994 genocide, Rwanda used community-based gacaca courts, with elected lay judges, to try very large numbers of cases.

Compared with: Rwanda, International criminal law, Common law

Lok Adalat

India

A 'people's court': an Indian forum, set up by statute, where disputes are settled by agreement and conciliation, free of charge. A settlement reached there has the force of a court decree.

Compared with: India, Common law, Germany