EN>ES: Agreement

Agreement; when should it be translated as acuerdo, contrato, convenio or pacto?

By: Octavio Hernandez

Okay, let's talk about the legal term "Agreement"; at the end of this workshop we will learn how to better apply its numerous equivalents in our Spanish projects. As we all know, complete accuracy and correctness have always been a challenge for translators. Devoted translators always try to improve their professional skills and quality by culling every available source of information, but sometimes these sources don't seem helpful enough when it comes to finding the closest Spanish equivalent for an English word used in a technical document.

Guillermo Cabanellas' Legal Dictionary says "Agreement: acuerdo, convenio, contrato, pacto, estipulación"; Marina Orellana's Glosario Internacional para el Traductor states "agreement: acuerdo, pacto, convenio, contrato, concordancia, conformidad." Yes, but!... which is the right one? If I have a trust agreement, a repurchase agreement, a non-disclosure agreement, a North American Free Trade Agreement, etc., how am I going to call them in my translations? Well, that's what we are going to learn tonight.

First, let me just give you a brief introduction to the problems posed by this legal concept. Certainly, it would be much easier for us, the Spanish translators, if American lawyers used more often the English word "contract," -when appropriate, of course (actually this happens quite often since most economic relationships are governed by contracts), instead of calling almost everything an agreement, since for American lawyers, the words "contract" and "agreement" mean the same thing. However, for Latin- American lawyers, the term "agreement" happens to be a broader term when it comes to naming a legal instrument.

Let's put it this way, Black's Law Dictionary, under its entry "agreement," says, "it's a meeting of two or more minds". Basic! Looks easy!; however, it goes on to say: "it's the coming together in accord of two minds on a given proposition" (well, for Hispanic attorneys and the Real Academia Española, this sounds like an acuerdo). But this is not the end of the story because the entry continues, "it's the consent of two or more persons concurring respecting the transmission of some property, right, or benefit, with the view of contracting a mutual obligation" (for a Hispanic attorney and the Real Academia Española, this definition is very close to a contrato); Black's dictionary adds: , "it's the act of two or more persons, who unite in expressing a mutual and common purpose, with the view of altering their rights and obligations" (again, for me, personally, a Mexican lawyer, and the Real Academia Española, this one is pretty close to what convenio is all about).

You may be wondering what's the point of this kind of comparison; well, it is an attempt to answer why American lawyers call everything "agreement" and Hispanic lawyers just can't do the same. For us, the equivalents of "agreement", including, but not necessarily limited to, acuerdo, contrato, convenio, and pacto are of a different nature and have a different purpose, and they should be used accordingly.

Let me suggest some tips to help us distinguish and make better use of at least the main Spanish quivalents of the term "agreement." Please note that what follows is mostly taken from law doctrine and not the result of lexicographic techniques:

Acuerdo. Let's use acuerdo when the instrument is intended to settle a private conflict and when it involves a resolution adopted by a court or a board; also when the instrument represents a cultural or economic relationship between two or more countries, or two or more government agencies.

Contrato. We use contrato when the instrument is intended to govern the financial relationships between two or more individuals or corporations. While there is situation characterized by a desire to purchase and a will to provide, the most important element here is that there must be a consideration and economic benefit for each party to the contract. (Remember, "consideration" means compensation, payment, price.)

Convenio. Convenio is used when the instrument supplements, modifies, or terminates a contract. Therefore, convenio requires a prior legal act or an existing contract , otherwise what is it going to supplement, modify or terminate?

Pacto. Let's use pacto very rarely, because it doesn't actually represent an instrument (except in international law, when used in the sense of agreements entered into by two or more countries). Pacto is a side agreement; actually, it is a particular term or condition within a contract; which creates accessory obligations that will normally expire with the main contract; in other words, it co-exists with the contract.

Now, let's try this recipe using the following common instruments, so that we know how to call them when their Spanish translation has to be rendered:

1. Repurchase agreement. This item is a pacto. Why? Because it happens to be a particular term or condition inserted in a purchase contract. Under such condition, the seller is entitled to buy back the goods he sold at a specified date and price. As I said before, this side agreement requires, first of all, a purchase contract for its existence and, therefore, its effects will normally expire when the purchase contract expires.

2. Trust agreement. This instrument is a contrato, because it entails a financial relationship whereby the trustor desires to entrust property and the trustee agrees, for a consideration, to undertake the responsibility of handling such property for the benefit of someone else.

3. Price-fixing agreement. This one is an acuerdo, because it is the kind of agreement reached by trade boards or price-fixing committees. (Please note that these arrangements are more common in Hispanic countries to protect, let's say, consumer rights.)

4. Escrow agreement. This is a contrato. It is another financial relationship whereby the depositor desires to put funds in deposit and the custodian wishes, for a consideration, to undertake the responsibility of holding such funds.

5. Joint venture agreement. This instrument is also a contrato, because it is a financial relationship involving two or more parties that are to work on a project together. As I said before, here too there is a consideration and an economic benefit for each party to the contract. For example, let's say that one party desires to provide funding and the second party will provide technology, so that both of them obtain an economic benefit.

6. Exclusivity agreement. This is a pacto. Why? Because it is a particular term or condition within a distributor or agency contract. Therefore, it is a side agreement that co-exists with the contract, i.e., with the main instrument.

7. Non-disclosure agreement. This one is a convenio, and I'll tell you why. This instrument is commonly a set of terms and conditions agreed to by an employee, as a supplement to his employment agreement, whereby the employee pledges to hold in strictest confidence and not to disclose the employer's proprietary information.

8. Free trade agreement. This is an acuerdo, because these kinds of instruments involve economic relationships between two or more countries and, therefore, are governed by international law, and not by contracts, as happens with economic relationships between individuals or corporations. We can also call these instruments tratados.

9. Discharge agreement. This is a convenio, because the instrument terminates a prior agreement, which may be a labor contract or a loan contract.

10. Amendatory agreement. This is also a convenio, because it requires a prior legal act for its purpose, which is to modify an existing contract.