Escribanía - 28/06 - Parte 1

Name: Escribanía - 28/06 - Parte 1
Uploaded: 2024-08-08T22:27:50.000Z
Duration: 3 h 56 min 22 s

Introduction and Attendance

Opening Remarks

The speaker expresses excitement about the session, indicating a lively atmosphere with music in the background.

Acknowledges participants with greetings, establishing a friendly tone for the meeting.

Technical Issues

The speaker shares their experience of technical difficulties upon returning to their computer after an initial setup, highlighting common challenges in virtual meetings.

Participants are confirmed present, including Virginia, Carolina, Julieta, and others. This indicates a diverse group involved in the discussion.

Discussion on Protocol Formation

Overview of Article 300

The speaker references Article 300 regarding protocol formation, emphasizing that local legislations govern this aspect rather than central authority.

Clarifies that protocols are not closed books; they begin with blank pages purchased by notaries for drafting documents.

Document Inclusion

All documents added to the protocol must be considered valid whether mandated by law or chosen by parties involved.

Future discussions will cover specific articles detailing which documents should be included in protocols.

Exploration of Article 301

Key Features of Article 301

The speaker notes that Article 301 retains much from previous codes but introduces significant updates relevant to public document handling abroad.

Notarial Practices

Emphasizes the importance of notaries understanding parties' intentions during initial meetings to ensure legal compliance and proper documentation.

Inmediatez Principle

Discusses "inmediatez," stressing its role as essential within Latin notarial systems where direct interaction between notary and parties is crucial for validity.

Conclusion on Notarial Responsibilities

Essential Duties of Notaries

Understanding Legal Protocols and Document Configuration

Key Concepts in Legal Documentation

The discussion emphasizes the importance of understanding the legal framework surrounding document protocols, highlighting that there are specific elements and prerequisites that must be met for a legal act to be valid.

There is a focus on the requirement for public deeds to be executed in a single act, which underscores the principle of unity in legal documentation.

The speaker notes that documents can be handwritten or typed, including electronic formats, as long as they comply with local regulations regarding their presentation.

Historical context is provided about the evolution of document creation methods, from handwritten scripts to typewriters and now digital formats, illustrating how technology has influenced legal practices.

The speaker mentions ongoing discussions about acceptable documentation methods and stresses that local regulations govern these practices while allowing flexibility in format.

Principles of Conservation in Legal Acts

A significant point raised is related to the conservation principles established by notaries, emphasizing secure procedures for maintaining written records.

The necessity for clarity in communication during discussions about conservation principles is highlighted; it’s crucial for all parties involved to understand these requirements clearly.

There are restrictions on using certain printing technologies (like laser printers), as they may not provide adequate security for maintaining written records over time.

Challenges with Simultaneous Signatures

The concept of "unity of act" is revisited, particularly concerning whether signatures should occur simultaneously with events being documented. This raises practical challenges in real-world scenarios.

Issues arise more frequently with acts involving multiple parties where simultaneous signatures are required. This complicates logistics significantly compared to straightforward transactions.

The speaker expresses a preference for tackling complex legal problems rather than coordinating multiple signatories due to practical difficulties such as differing schedules among participants.

Practical Implications of Document Execution

Real-life examples illustrate complications when numerous individuals need to sign documents at once. These situations often lead to logistical nightmares requiring careful planning and coordination among all parties involved.

Understanding the Legal Framework of Public Deeds

The Complexity of Drafting Public Deeds

The article addresses challenges in drafting public deeds, particularly when multiple parties are involved. It aims to clarify how these documents can be effectively created.

In situations where conditions are unfavorable (e.g., bad weather), the law allows for the drafting of deeds to occur later in an office setting on the same day, enhancing practicality.

The discussion emphasizes that public deeds should ideally be executed in a single act, highlighting a general rule that simplifies legal processes.

Distinctions in Legal Acts

A unique case previously existed with closed wills requiring simultaneous actions; however, this is no longer applicable under current regulations.

The speaker explains that previous laws aimed to prevent tampering with documents by ensuring all signatures were collected at once, which is now less stringent.

Clarifying Material vs. Formal Unity

It's crucial to differentiate between material unity (the physical act of signing) and formal unity (the timing and context of signing). This distinction impacts how transactions like sales are documented legally.

The article proposes solutions for maintaining formal unity even if material acts occur separately throughout the day, as long as they do not alter the deed's content.

Innovations in Signing Procedures

New provisions allow multiple signatories to execute a deed at different times within the same day without changing its text, provided there’s no exchange of money or valuables present during signing.

This flexibility aims to streamline processes involving numerous parties while ensuring legal integrity remains intact throughout the transaction.

Addressing Potential Misunderstandings

There is concern about altering signed documents after initial agreements; once a party signs, changes cannot be made without consent from all involved parties.

Clarifications regarding articles suggest that while public deeds must generally be executed in one act, exceptions exist for cases with multiple signers on the same day without altering original terms.

Understanding Civil Law and Notarial Practices

The Role of the Notary

The discussion begins with the clarification that when referring to what a notary perceives, it encompasses all five senses, not just sight and hearing. This is crucial for understanding the obligations of a notary in civil law.

There is an assertion that the article being discussed is poorly drafted as it mixes different topics, leading to confusion about its intent and meaning.

Writing and Signing Procedures

A key point raised is whether a document must be executed in one single act. The new code addresses this by stating that certain documents must be drafted within 24 hours after the notary's perception.

Two distinct cases are identified regarding document signing: one requires drafting within 24 hours, while another allows for signatures throughout the day as long as they are completed within that timeframe.

The practical challenge of gathering numerous signatories (e.g., 50 people for a building transaction) highlights why flexibility in signing procedures is necessary under current legal frameworks.

Language Requirements in Documentation

Article 302 emphasizes that public documents must be written in the national language. If any party does not understand it, translations must be provided by an accepted translator or interpreter.

The term "national language" is clarified; it does not strictly refer to Spanish but could include other languages recognized by indigenous peoples, raising questions about inclusivity in legal documentation.

Practical Implications of Language Use

It’s noted that public instruments should be comprehensible to everyone, which necessitates using widely understood terms even if they are borrowed from other languages or cultures.

A comparison with previous legislation indicates improvements; now interpreters can assist when no official translator exists, streamlining processes without needing court intervention for minor issues.

Challenges with Interpretation

While allowing interpreters offers flexibility, there are concerns about accountability since the notary may struggle to verify an interpreter's qualifications if they do not speak the language themselves.

Understanding Language Barriers in Notarial Acts

The Importance of Language Declaration

A notary must ensure that the individual declaring they do not speak the national language is indeed the person making that claim, rather than relying on a third party.

In cases where no public translator is available, a notary may accept an interpreter who has some knowledge of the subject matter to facilitate communication.

It is crucial for the notary to inquire about language proficiency before starting any documentation process to avoid misunderstandings during transactions.

Practical Challenges Faced by Notaries

Notaries often encounter clients who do not speak the national language and rely on intermediaries for basic communication, which can complicate proceedings.

The speaker emphasizes that practical scenarios often differ from theoretical guidelines, highlighting the need for adaptability in real-life situations.

Communication Strategies with Non-National Speakers

When dealing with individuals speaking languages like Italian or English, a notary may manage basic communication; however, languages such as Chinese present significant challenges.

The necessity of clear communication is underscored; if someone cannot express their understanding of Spanish adequately, it raises concerns about their comprehension of legal documents.

Ensuring Understanding in Legal Transactions

It is essential for clients to declare their language limitations clearly; this declaration should come directly from them rather than being assumed by others.

Even if a client speaks some Spanish but struggles with full comprehension, they must communicate their limitations to ensure proper understanding during legal processes.

Responsibilities of Notaries Regarding Client Comprehension

A hypothetical scenario illustrates potential issues when clients do not fully understand the implications of legal agreements due to language barriers.

Most notaries strive to act ethically and responsibly; however, there are instances where misunderstandings can lead to complications later on.

Understanding Notarial Procedures

The Importance of Signature Verification

Discusses the complexities surrounding signature verification, emphasizing that one cannot simply deny a signature without providing evidence of intervention or misunderstanding.

Highlights the necessity for notaries to be prepared for various scenarios, acknowledging that while most transactions proceed smoothly, unexpected issues can arise.

Language Barriers in Notarial Acts

Addresses challenges when dealing with clients who have limited understanding of Spanish, stressing the need for established procedures to ensure comprehension during notarial acts.

Explains the requirement for a "minuta," which is a summary document outlining the intent of a transaction before drafting an official deed.

Practical Challenges in Drafting Minutas

Notes that often clients may not understand how to create a minuta themselves, necessitating assistance from the notary or an interpreter.

Describes potential scenarios where clients might provide documents in their native language (e.g., Cantonese), requiring translation and proper documentation processes.

Protocolization vs. Aggregation

Clarifies that clients can request notarization of foreign documents as long as they include an accepted translation by a public translator or interpreter.

Mentions doctrinal debates regarding terminology—specifically whether "protocolization" should only refer to judicially ordered actions versus simple aggregation of documents.

Document Handling and Record Keeping

Emphasizes that all foreign instruments must come with translations and appropriate requests for protocolization, ensuring clarity in record keeping.

Judicial Requirements for Foreign Documents

Transforming Private Instruments to Public

Judicial requirements necessitate proving circumstances that could convert a private instrument into a public one, especially when requested by the parties involved.

The translation of documents is essential to avoid violating Argentine public order and ensuring legitimacy in the national public registry.

Protocolization of Real Estate Transfers

Previously, judges were required to protocolize real estate transfer documents; this requirement has changed, leading to discussions on its implications.

If presented with a real estate transfer document in French, it must be translated. Ideally, protocolization should occur for proper registration.

Translation and Documentation Practices

A foreign language document must be translated by an accepted translator; the notary can require this translation for inclusion in the protocol.

Best practices suggest including both the original foreign document and its translation in any testimony for completeness.

Testamentary Procedures and Language Requirements

Language Considerations in Wills

Historical codes required wills from non-Spanish speakers to be drafted in both languages, complicating matters if using ideographic scripts like Chinese or Arabic.

Current regulations do not specify language requirements for witnesses but imply they should understand both languages involved.

Witnesses' Role in Testament Execution

Witnesses are crucial as they confirm that the testator understands and agrees with the will's contents; their comprehension of both languages is ideal.

Given the potential challenges posthumously defending a will's validity, meticulous attention is necessary during its drafting process.

Regulatory Guidelines on Document Formatting

Abbreviations and Numerical Representation

Article 303 outlines that no spaces should be left blank nor abbreviations used unless specified within transcribed documents or scientifically accepted symbols.

Formatting and Notarial Practices

Importance of Closing Spaces in Documents

The practice of using slashes to close spaces in documents has diminished, leading to larger gaps that can be problematic.

In notarial formats, it is essential to avoid leaving large blank spaces; these should be closed with a line to maintain document integrity.

Handling Blank Spaces

Any significant blank space must be addressed by drawing a line across it, especially in formal protocols.

Abbreviations are acceptable if they are conventionally recognized; however, full names should always be used for clarity.

Clarity in Names and Abbreviations

Full names must be written out instead of using initials or abbreviations unless they are widely accepted.

An anecdote illustrates the confusion caused by incomplete name entries, emphasizing the need for accuracy in documentation.

Writing Numbers and Legal Elements

There is a shift from writing all numbers in letters to allowing numerals except for essential legal quantities presented before a notary.

Historical context: Mario C's work critiqued public instruments that were often illegible due to poor formatting practices prevalent since the 1940s.

Evolution of Notarial Documentation Standards

Mario C advocated for clearer documentation practices, arguing against the exclusive use of letters which made reading difficult.

The transition towards more readable formats was met with resistance from traditional notaries but ultimately led to improved standards.

Essential Elements of Legal Acts

Essential elements within legal acts must still adhere to being written clearly; this includes specific details like prices and property descriptions.

Each case may have different essential elements based on its context; thus, careful consideration is necessary when drafting documents.

Describing Property Accurately

When describing properties legally, individualizing elements should ideally remain numeric while maintaining clarity about dimensions and boundaries.

Discussion on Property Descriptions and Legal Instruments

Importance of Public Instruments in Property Transactions

The discussion emphasizes the necessity of using public instruments, such as official plans, to describe property accurately. This ensures clarity in transactions involving specific lots or parcels.

It is noted that when dealing with horizontal property units, precise identification (e.g., unit 0201) suffices for legal documentation.

Clarity and Fraud Prevention

The rationale behind detailed descriptions is to prevent fraud; public instruments are less susceptible to alterations compared to private ones.

Emphasis is placed on writing amounts in both letters and numbers during notarization to enhance readability and reduce misunderstandings.

Compliance with Legal Standards

While there may be preferences against certain practices, adherence to legal requirements—such as writing out payment terms—is crucial for compliance.

Clarification is made that minor discrepancies do not lead to nullity but can result in challenges or penalties.

Considerations Regarding Disabilities in Legal Context

Terminology Sensitivity

The speaker addresses the sensitivity required when discussing individuals with hearing disabilities, advocating for precise language without euphemisms.

Acknowledgment is made that while terminology may seem harsh, it reflects reality and should not be avoided for fear of causing offense.

Legal Precision vs. Social Sensitivity

There’s a call for precision in legal definitions; vague terms like "disability" can lead to confusion regarding an individual's capabilities.

The speaker argues that being explicit about conditions (e.g., stating someone is deaf rather than using euphemisms) aids legal clarity.

Implications for Notaries

Discussion includes how a notary's ability might be questioned if they have any form of disability at the time of performing their duties.

Discussion on Notarial Acts and Capacity

Validity of Notarial Acts Despite Incapacity

The speaker discusses the validity of notarial acts even when the notary is incapacitated (e.g., deaf or mute), emphasizing that the act remains valid to protect the parties involved.

It is highlighted that capacity does not apply in the same way for notaries; they must be capable at the time of exercising their duties, protecting those who engage with them in good faith.

Good Faith and Communication Challenges

The concept of good faith is questioned when a party encounters a mute notary, raising concerns about how parties can ensure understanding during transactions.

The discussion points out that if a notary becomes incapacitated after starting their role, it may lead to complications requiring specific cases to be evaluated individually.

Legal Framework Regarding Disabilities

Reference is made to Article 2467 regarding wills, which states that limitations in communication can invalidate a will if the testator cannot express themselves adequately.

The speaker notes historical context where being mute was sufficient grounds for incapacity, but modern interpretations allow for more nuanced understandings.

Implications for Deaf-Mute Individuals

Current laws suggest that a deaf-mute individual could still participate as an grantor in legal documents despite challenges in communication.

There are provisions indicating that individuals with hearing impairments must have two witnesses present to confirm their understanding and comprehension of legal acts.

Witness Requirements and Communication Methods

For individuals with auditory disabilities, two competent witnesses fluent in sign language or other communication methods are required to validate understanding during legal proceedings.

Criticism arises regarding witness requirements; there’s concern over whether standard practices effectively ensure comprehension among all parties involved.

Practical Considerations in Notarial Practices

The necessity for expert witnesses who can interpret communications accurately is emphasized, ensuring proper representation of individuals with disabilities during notarization processes.

Real-life scenarios illustrate challenges faced by notaries when dealing with clients who have severe communication barriers, highlighting practical difficulties beyond theoretical frameworks.

Communication Challenges with Hearing Impairments

Understanding Communication with Deaf-Mute Individuals

The speaker shares an experience communicating effectively with a deaf-mute individual using written messages on a cellphone, highlighting the importance of adaptability in communication methods.

Emphasizes that despite the challenges, clear communication was achieved without formal documentation (minuta), indicating that understanding can sometimes take precedence over bureaucratic processes.

Discusses legal frameworks regarding communication with individuals who are deaf or mute, noting that certain conditions must be met for specific articles to apply.

Legal Considerations and Documentation

Clarifies that if a person has total deafness or muteness, they may require interpreters; however, those who can interact verbally or through writing may not need formal documentation.

Questions the necessity of creating a minuta (a summary document), suggesting it depends on the complexity of the situation and whether it is legally required.

Highlights differing opinions among notaries about when to use interpreters versus relying on direct written communication from individuals who are literate.

Complexity in Legal Transactions

Points out that while drafting simple documents might seem straightforward, complexities arise when detailing property transactions and payment terms.

Stresses the importance of accurately describing properties in legal documents to avoid complications later on during transactions.

Eufemism and Disability Awareness

Engages in a discussion about euphemisms used around disabilities, questioning why simpler language isn't utilized when discussing these topics.

Reflects on personal experiences related to disability awareness and how societal perceptions can impact interactions with disabled individuals.

Interpreting Disabilities in Legal Context

Raises concerns about determining the degree of hearing impairment and its implications for legal documentation requirements.

Explains that discussions around euphemisms also involve activists advocating for respectful treatment of disabled individuals without making them feel marginalized.

Concludes by stating that if an individual cannot communicate effectively in writing due to their disability, two interpreters should be involved in any legal proceedings.

Discussion on the Necessity of Minutes for Hearing-Impaired Individuals

Importance of Documentation

The speaker expresses discomfort in needing to create minutes for individuals with hearing impairments, emphasizing that it is a matter subject to factual circumstances.

There is a debate about whether creating minutes for those using hearing aids is excessive; however, the speaker acknowledges the importance of ensuring understanding during legal acts.

Ethical Considerations

The speaker believes that if an individual has a hearing impairment, documenting the proceedings (minutes) should be mandatory as it serves as a summary and does not harm their dignity.

They argue that creating minutes protects both parties involved by confirming comprehension and safeguarding against future disputes regarding understanding.

Legal Implications

A scenario is presented where an individual with a hearing aid might later claim they did not hear anything due to the device being off, raising concerns about potential legal challenges.

The necessity of documentation becomes clearer when considering situations where misunderstandings could lead to accusations of bad faith in transactions.

Critique of Current Practices

The speaker criticizes euphemistic language used in legal documents, advocating for straightforward statements regarding comprehension and agreement rather than convoluted phrasing.

They share personal experiences where clear documentation was made regarding an individual's understanding and agreement during signing processes.

Challenges Faced by Practitioners

There are frustrations expressed about requiring interpreters even when communication seems effective, highlighting how this can complicate interactions unnecessarily.

The discussion touches on broader issues related to victimization through overprotection, suggesting that sometimes formalities may hinder genuine communication.

Final Thoughts on Capacity and Communication

Concerns are raised about how current laws address relative incapacity without clear timelines or guidelines, potentially leading to further victimization.