Escribanía - 07/06 - Parte 1

Introduction and Attendance

Class Opening

• The session begins with greetings among participants, confirming audio functionality.

• The instructor takes attendance, noting the presence of various students including Carolina, Julieta, and others.

Review of Previous Content

Recap on Notarial Acts

• The instructor indicates that the last class covered notarial acts but acknowledges some topics may have been advanced. They plan to revisit these concepts.

• Emphasis is placed on understanding the prerequisites and elements involved in a notarial act.

Elements of Notarial Acts

Prerequisites for Notarial Actions

• Discussion centers around essential prerequisites: capacity of the subject, legitimacy, and suitability of the object involved in a notarial act.

• These prerequisites are foundational to ensuring valid behavior prior to any legal action being taken.

Components of Notarial Acts

Understanding Act Composition

• The instructor explains that elements constituting an act include content, form, and cause; these differ from prerequisites which exist before actions occur.

• A distinction is made between content (the intrinsic nature of behavior) and object (what is perceived). This differentiation is crucial for clarity in legal contexts.

Content in Notarial Acts

Defining Content

• Content refers to the material aspects and interests regulated by parties during transactions like sales; it encompasses how agreements are structured between them.

• In notarial terms, content involves the notary's perception rather than just what is observed or recorded as an object. This highlights the subjective element inherent in notarization processes.

Legal Certainty through Public Faith

Role of Public Faith

• The discussion transitions into how public faith arises from notarial acts aimed at providing certainty and stability within legal frameworks outside judicial processes.

• It’s noted that public faith relies on presumption—such as assuming a notary's honesty—which underpins many legal interactions and decisions made by society at large.

Objectivity in Notarization

Importance of Objective Perception

• The necessity for a notary's perception to remain objective is emphasized; subjective influences must be minimized to maintain integrity in notarized documents.

• Distinction between perceived facts versus personal judgments or interpretations is critical for upholding trustworthiness in legal documentation practices.

Understanding Notarial Perception and Public Faith

The Nature of Perception in Notarial Acts

• The speaker discusses the challenge of discerning reality from illusion, particularly in the context of perceiving a sale transaction. They emphasize the importance of recognizing genuine actions, such as money being exchanged.

• The concept of "judgments of essence" is introduced, where perception occurs subconsciously. For instance, upon seeing money, one immediately recognizes it without needing to analyze its nature.

• It is highlighted that everything perceived by a notary is covered by public faith according to Article 96. This means that what a notary declares they perceive holds legal weight.

Distinguishing Types of Judgments

• A distinction is made between judgments based on personal expertise versus those covered by public faith. Notaries may assess the validity of documents or powers but their personal judgments do not carry public faith.

• When a person presents a power to a notary, only the act of presenting it is covered by public faith; any judgment about its sufficiency remains subjective and can be challenged with evidence.

Objective Perception vs. Memory

• The speaker outlines three scenarios regarding signature verification: witnessing a signature directly, comparing known signatures, and recalling past observations. Only direct witnessing qualifies for public faith coverage.

• There’s an exploration into how memory affects perception over time. Memories are subjective and influenced by current circumstances rather than objective facts.

Legal Implications in Notarial Practice

• The discussion touches on how these issues manifest in notarized acts like sales or donations. These situations often require careful consideration due to their legal implications.

• A debate exists regarding whether notaries should draft acts at the location of events or later in their offices due to practical challenges faced during fieldwork conditions.

Anecdotal Insights from Historical Context

Municipal Ordinance and Pension Regulations

Overview of the 1950 Ordinance

• In the early 1950s, a municipal ordinance was established that defined specific requirements for pensions, including the necessity of services akin to those in hotels, such as linen changes and towel service.

• The ordinance sparked significant controversy as it classified establishments without these services under rental laws instead of pension regulations.

Legal Challenges and Observations

• A combative lawyer approached the speaker to verify whether these required services were being provided at various establishments.

• During this verification process, the speaker encountered various stakeholders, including property owners and their legal representatives.

Disputes Among Legal Professionals

• A notable incident occurred when a poorly performing notary public attempted to assert authority over the verification process, leading to disputes between lawyers regarding procedural correctness.

• The discussion highlighted confusion about whether a protocol was necessary for conducting verifications, with both parties admitting their lack of adherence to formal procedures.

Objectivity in Legal Perception

Importance of Objective Perception

• The conversation shifted towards the need for objective perception in legal documentation; it was emphasized that acts must be recorded on the same day to avoid subjective contamination.

• This principle is rooted in ensuring that perceptions remain untainted by personal biases or external influences.

Sensory Perception Analysis

• Mario's work introduced a comparison between different senses: sight and hearing are deemed more objective compared to touch, taste, and smell due to their inherent subjectivity.

• The speaker noted that knowledge acquisition through sight or sound maintains an objective distance from objects being perceived.

Implications for Notarial Certainty

• Mario concluded that certainty in legal acts relies on perceptions derived from sight or hearing since they minimize potential errors attributed to personal interpretation.

Historical Context of Notarial Practices

Reference to Historical Documents

• The speaker expressed interest in historical developments within notarial practices, particularly referencing Maximilian's constitution from October 8, 1512.

Notarial Perception and Objectivity

The Role of Notaries in Documenting Sensory Experiences

• Notaries must diligently document events in their protocols, focusing only on what can be perceived physically. Their authority does not extend beyond these tangible observations.

• For sensory experiences like taste, touch, and smell, witnesses must directly engage with the object in question to provide valid testimony; this ensures that the notary's documentation is credible.

Subjectivity of Sensory Perception

• Sensory perceptions such as taste and smell are highly subjective; what feels hot or smells unpleasant to one person may differ significantly for another.

• Unlike sight and hearing, which allow for more objective judgments, lower senses evoke emotional responses that can cloud objectivity.

Ensuring Objectivity in Notarial Acts

• In complex situations (e.g., damaged property), alternative methods like photographs should be used to ensure accurate representation and documentation.

• A 2017 civil law conference emphasized that perception extends beyond sight and sound; it includes all senses when documenting facts.

Legal Framework Surrounding Notarial Documentation

• Article 312 outlines that a notary's evidentiary value is limited to what they can observe directly; however, this observation can involve any sense.

• The notary’s public faith covers their actions; thus, they may perceive time through familiar cues (like calendars or radio).

Importance of Objective Descriptions

• It is crucial for notaries to maintain objectivity in their descriptions. For example, instead of stating "the floor is dirty," they should describe specific conditions (e.g., "the floor has dirt and paint stains").

Understanding the Concept of Cause in Notarial Acts

• The cause refers to the underlying reason recognized by law for behaviors documented by notaries. This concept differs from mere will or intention behind an act.

• Legal frameworks assess human behavior based on societal benefits rather than individual motives—what matters legally is the existence of a contract rather than personal reasons for entering into it.

Understanding the Legal Framework of Notarial Acts

The Concept of Cause in Notarial Acts

• The modern General Theory of Juridical Acts defines "cause" as the immediate end authorized by legal order that determines will, emphasizing its role in notarial acts.

• It distinguishes between individual motives and cause, noting that only lawful motives incorporated into the act are essential for both parties involved.

• The purpose of notarial acts is to provide certainty through public faith, which binds all parties, including judges, to trust in the validity established by a notary.

• This legal framework aims to eliminate uncertainty outside judicial processes, thereby providing stability and justice within the legal system.

• A notary's advisory role enhances this certainty for all parties involved in a notarized act.

Elements of Behavior in Legal Acts

• Behavior is an essential element of legal acts; it can manifest through declarations (oral or written), operations (like construction), or omissions (silence).

• Article 262 outlines that acts can be expressed orally, in writing, through unequivocal signs, or via material actions.

• Silence may serve as a manifestation of will only when there is an obligation to express oneself; otherwise, it does not count as such according to Article 263.

• Article 314 states that private instruments require acknowledgment of signatures; failure to do so may imply recognition by default.

Freedom and Formality in Legal Contracts

• Social significance influences how behaviors are treated legally; some acts have free forms while others have imposed forms per law.

• According to Article 284 on freedom of form, if no specific form is mandated by law for expressing will, parties can choose any they deem appropriate.

• Parties may agree on more stringent forms than those required by law but must ensure these are complex enough to meet legal standards.

• Article 105 emphasizes that formal requirements apply equally to modifications made after contract formation unless specified otherwise.

Legal Relationships and Obligations

Understanding Legal Relationships

• In legal relationships, there exists a dichotomy where the state's authority contrasts with citizens' obligations. Citizens must comply with state regulations due to their subordinate position.

• In private law, the creditor's right to collect a debt correlates with the debtor's obligation to fulfill it, illustrating a consistent theme of subjugation in legal interactions.

• The concept of subjective rights allows one party to demand specific behavior from another, while obligations represent the duty of compliance necessary to meet those demands.

The Role of Notarial Acts

• Compliance with legal formalities is essential for exercising rights; individuals bear the responsibility for adhering to these requirements without external compulsion.

• In notarial acts, fulfilling formalities is not merely a burden but an obligation that carries significant consequences if neglected.

• Notaries must maintain objectivity and ensure maximum security in their actions, adhering strictly to prescribed procedures during notarial acts.

Importance of Formality in Legal Acts

• The formality of notarial acts serves as a narrative tool for notaries, documenting both their actions and those of others within legally defined parameters.

• Misunderstandings often arise regarding protective measures in transactions like sales contracts; clarity on legal requirements is crucial for safeguarding parties involved.

Consequences of Non-compliance

• If a required public deed is not executed properly, it may be deemed ineffective but can still serve as evidence that parties intended to fulfill certain obligations.

• There exists confusion surrounding nullity in contracts; while some view them as void and unprotective for buyers, they can still lead to compensatory outcomes or partial validity under certain conditions.

Legal Framework and Nulity

• Null acts may produce unintended effects contrary to initial expectations; understanding this complexity is vital when navigating contractual agreements.

• Articles within civil codes address how null acts can convert into valid ones if they meet essential criteria desired by the parties involved at contract inception.

• Legislative changes have attempted to clarify issues surrounding nullity but have inadvertently perpetuated confusion regarding act classification and implications.

Understanding Legal Formalities in Contracts

The Importance of Consent and Formality

• The discussion begins with the notion that acts without consent are inherently flawed, emphasizing the necessity of formal requirements for certain legal actions.

• It is highlighted that while donations of real estate and vehicles must be executed through public deeds, failure to comply results in nullity, contrasting this with private instruments which do not impose obligations.

Distinction Between Form and Proof

• A critical distinction is made between 'form' as a legal requirement and 'proof' as documentation; they are not interchangeable concepts.

• An illustrative example is provided: a man writing his will. The act itself (the man writing) represents the form, while the resulting document serves as proof of that act.

Legal Framework on Formalities

• References to various articles within legal codes indicate that behaviors can be proven even if formal requirements were not met, allowing for flexibility in evidencing contracts.

• It is noted that contracts requiring formalities can still be validated through alternative means such as witness testimony when original proof is unattainable.

Implications for Notarial Practices

• The speaker discusses how Spanish notarial practices have been impacted by these distinctions, reducing the perceived importance of written documents to mere evidence rather than essential components of legal validity.

• Carnelutti's insights into form versus proof challenge traditional views held by notaries regarding the significance of written documents in establishing legal acts.

Classification of Legal Acts

• There’s an emphasis on differentiating between free-form acts and those requiring imposed forms under penalty of nullity; this classification aids in understanding contractual obligations.

• The new code aligns with Guastavino's classification system, distinguishing between contracts based on their required forms—imposed or free—and addressing potential conversions related to non-compliance.

Summary Insights on Legal Requirements

• A summary suggests that discussions around formalities should focus solely on instances where specific legal requirements dictate a particular form for validity.

Discussion on Real Estate Transactions and Legal Implications

The Role of Judges in Real Estate Transactions

• The judge's role is crucial, but there are complexities involved that may not be immediately apparent.

Understanding the Purchase Agreement (Boleto de Compraventa)

• A purchase agreement can serve as a means of evasion regarding payment timelines; it delays the transfer of ownership until all payments are completed.

• Immediate transfer of ownership with a mortgage for the remaining price could provide security to all parties involved, yet this practice is rarely utilized.

Reasons for Using Purchase Agreements

• Purchase agreements often arise from practical needs, such as pending inheritances or unresolved legal matters that delay formal property transfers.

• In some cases, urgency necessitates a purchase agreement while awaiting resolution of estate issues or tax debts.

Limitations and Challenges in Property Transfers

• Even if a purchase agreement is signed, it does not guarantee that the judge can finalize the transaction if legal requirements aren't met.

• The role of notaries is emphasized as they must ensure compliance with legal standards before proceeding with transactions.

Practical Examples and Anecdotes

• An anecdote illustrates how poorly planned property divisions can lead to unfeasible outcomes due to municipal regulations.

• Local authorities dictate building codes and minimum unit regulations, which can complicate property division efforts.

Judicial Authority and Mortgage Considerations

• Judges cannot grant deeds if there are underlying issues preventing compliance with local laws or ownership verification.

• Historical context reveals that judicial mortgages were previously prohibited; however, current interpretations allow judges to grant mortgages under certain conditions if pre-agreed upon in contracts.

Legal Framework of Notarial Acts

Understanding the Role of Notaries and Judicial Authority

• The discussion emphasizes the importance of a clear regulation for notarial acts, particularly in cases where judicial intervention is necessary to facilitate legal processes.

• It is noted that a judge can authorize regulations through written documentation rather than requiring direct involvement from the parties involved in a dispute.

Nature of Notarial Declarations

• A notarial act is characterized as an enunciative declaration, similar to statements made during sales transactions, which outline how agreements are executed and interests are regulated.

• The role of the notary involves cooperation in formalizing actions; this includes collaboration with representatives or public officials to validate legal behaviors.

Formal Integration and Validity

• The integration of formal requirements by notaries ensures that legal acts are valid; without proper formality, there may be no valid transaction.

• The necessity for formal compliance highlights that certain roles (e.g., translators or interpreters) must adhere strictly to prescribed formats for validity.

Distinction Between Acts

• There is a distinction between the validity of acts performed by parties versus those conducted by notaries; one can be invalid while the other remains valid based on adherence to procedural obligations.

• This complexity underscores that both parties' actions and the notary's actions can independently hold validity or invalidity depending on compliance with established norms.

Legal Obligations and Documentation

• Notaries have a legal obligation to document their actions rigorously; they cannot perform their duties informally but must follow strict written protocols.

• The narrative provided by a notary serves as an official record, reflecting their observations and ensuring security within legal frameworks.

Regulatory Framework for Notarial Acts

• Detailed regulations governing notarization are outlined in various legal codes, emphasizing the structured nature of these processes.

• Specific articles within civil law detail how notarized documents should be drafted, highlighting the importance of clarity in expressing intentions.

Interpretation Limitations in Notarial Acts

• Unlike private acts where interpretation may allow flexibility, notarial declarations require precise language as they do not permit interpretive leeway regarding intent.

• Clarity in drafting is crucial since any ambiguity could invalidate the act itself rather than allowing for correction through interpretation.

Understanding Notarial Acts and Their Importance

The Role of Parties in Notarial Acts

• The process of drafting a notarial act is crucial, as it ensures that the parties involved understand the significance of the document they are creating.

• An anecdote illustrates how real estate transactions often involve urgency; documents are signed quickly to secure deals, sometimes without full comprehension by the parties.

The Nature of Notarial Documentation

• The formality of a notarial act extends beyond just the physical document; it encompasses all surrounding guarantees that ensure parties are aware and willing participants.

• A notarial act's validity relies on clear communication and understanding among parties, emphasizing that clarity in expression is essential for legal certainty.

Clarity in Notarial Statements

• Distinctions in phrasing can significantly impact legal interpretations; for example, stating "Juan pays Pedro" provides clearer public faith than ambiguous statements about receipt.

• Specificity regarding payment methods (cash vs. deposit) is vital to avoid confusion and ensure comprehensive documentation.

Rigor in Notarial Procedures

• The formal structure of a notarial act must be meticulously followed to maintain its integrity; this includes precise language and thorough documentation practices.