Escribanía - 09/08 - Parte 1

Class Introduction and Attendance

Initial Remarks

• The session begins with casual greetings, indicating a relaxed atmosphere.

• Participants are noted to be few, possibly due to the early hour or cold weather.

Attendance Check

• The instructor starts checking attendance, mentioning several students by name.

• Acknowledges that some students may not have audio capabilities during the session.

Discussion on Class Structure and Importance of Attendance

Class Dynamics

• The instructor emphasizes the importance of starting on time and maintaining class structure for new students.

• There is a discussion about the challenges of integrating latecomers into ongoing lessons.

Student Engagement

• Students present are acknowledged, fostering a sense of community within the class.

Reviewing Important Legal Concepts

Article 305 Overview

• The instructor revisits Article 305, which outlines essential components of legal documentation.

• Emphasizes that certain elements must be included in legal documents such as date and place of signing.

Key Elements Discussed

• Highlights that absence or incorrect information can lead to nullification of documents under specific conditions (referencing Article 309).

Details on Required Information in Legal Documents

Personal Information Requirements

• Stresses the necessity for accurate personal details including names, identification numbers, and marital status in legal documents.

Responsibilities of Notaries

• Clarifies that it is not the notary's responsibility to verify personal claims made by individuals regarding their civil status.

Conclusion on Document Validity and Notarial Duties

Final Thoughts on Documentation

Understanding the Role of Notaries in Legal Documentation

Responsibilities of Notaries Regarding Legal Documents

• The notary must review enabling documents, including statutes, to ensure proper representation of legal entities.

• The concept of "comparendo" is introduced, highlighting the importance of identifying participants and parties in legal documentation.

• Historical practices regarding capacity in older deeds are discussed; terms like "capable" or "able" were commonly used but are now considered unnecessary.

Changes in Legal Capacity Regulations

• There is a shift away from using terms that imply judgment on a person's capability; it’s suggested that if a deed is executed, it implies all parties are capable.

• Recent doctrine indicates that it is no longer mandatory to include capacity statements in deeds, reflecting changes in legal standards.

New Code and Its Implications

• The new code alters the framework for assessing capacity, moving towards relative incapacity rather than absolute incapacity.

• Article 39 mandates that any declaration of incapacity must be registered officially to ensure validity and compliance with legal standards.

Concerns About Incapacity Registrations

• A significant concern arises due to the absence of a national registry for incapacitated individuals, complicating notarial duties.

• Notaries are advised to include declarations from parties affirming they are not under any form of incapacity when drafting deeds.

Recommendations for Drafting Deeds

• It’s recommended to incorporate specific clauses regarding capacity into future deeds as a precautionary measure.

• Article 388 discusses relative nullity and emphasizes that only those directly affected can invoke claims related to incapacity.

Practical Applications and Judicial Guidance

• The idea is presented that individuals should declare their capability as part of the deed process, supported by Article 388's provisions on nullity.

• Suggestions arise for including clauses confirming no ongoing incapacity processes during deed execution.

Court Orders and Registration Practices

• The College of Notaries has made strides toward ensuring court orders regarding incapacities are properly recorded within property registries.

Discussion on Property Registration and Capacity Restrictions

Understanding the Requirements for Property Registration

• The speaker discusses the necessity of transcribing court rulings regarding capacity restrictions in property registration, emphasizing that such details must be included in official documents.

• A distinction is made between past practices of recording absolute incapacities and current requirements, which now mandate that these should be noted in civil registries.

• Challenges are highlighted regarding civil registries' compliance with new codes, noting that while some may annotate incapacity on birth certificates, this process can be slow and inconsistent.

Recommendations for Legal Practitioners

• Lawyers are advised to request formal notifications to property registries to ensure proper documentation of capacity restrictions, as not all courts may follow established guidelines.

• The conversation shifts to relative incapacities versus total incapacities, indicating a trend towards allowing individuals with certain limitations to act independently with support rather than being completely restricted.

Current Practices and Legal Framework

• It is confirmed that both civil and property registries should record decrees related to capacity restrictions according to existing legal frameworks.

• The importance of understanding the legal obligations surrounding registrations is emphasized; practitioners should ensure compliance with both civil code requirements and court agreements.

Future Considerations for Notaries

• Notaries are encouraged to include declarations from individuals about their capacities when preparing documents, ensuring clarity in future transactions involving incapacity issues.

• Reference is made to Law 23300 45, which mandates specific identification numbers (like quit or CDI), stressing the need for thoroughness in documentation processes across various registers.

Addressing Practical Challenges

• The speaker shares experiences dealing with foreign clients who face difficulties obtaining necessary registrations due to missing identification numbers; solutions often involve temporary measures like stating non-possession of required IDs.

• Discussion includes the nature of acts within legal documents; it’s crucial for notaries to accurately define actions taken within contracts while ensuring all relevant clauses are included.

Understanding Notarial Acts and Legal Requirements

Importance of Proper Documentation in Notarial Acts

• Emphasizes the necessity of careful drafting and individualization of assets in notarial acts, highlighting the importance of establishing clear clauses.

• Warns about the need for caution when dealing with rights assignments, stressing the significance of accurately identifying the credit involved.

• Discusses legal requirements for notaries to document that a deed has been read aloud during its granting, which is now a legal obligation rather than just customary practice.

Amendments and Signatures in Notarial Documents

• Clarifies that if there are amendments in a document, they must be explicitly noted; simply having them is insufficient without proper acknowledgment.

• Mentions that if a party cannot sign, their fingerprint may be used as an alternative method of signing.

Overview of Notarial Instruments

• Introduces Article 310, defining notarial documents as those intended for verification purposes. This sets up discussions on how these differ from other legal instruments.

• Explains confusion surrounding public instruments as defined by civil codes, noting that previous interpretations may have limited understanding to acts rather than facts.

Legislative Framework Governing Notaries

• Highlights provincial regulations regarding notary practices and how local laws dictate procedures for creating records or acts.

• References specific articles from Santa Fe's law (Article 12 of Law 6898), detailing what actions notaries can perform under this legislation.

Record Keeping and Territorial Competence

• Discusses Article 11's stipulations regarding record keeping within each notary's office, emphasizing adherence to established protocols.

Discussion on Notarial Acts and Their Legal Implications

Overview of Notarial Practices

• The speaker discusses the practice of making notarial confirmations, noting that they typically performed these in the protocol while using the register for minor actions like signature certifications.

Recommendations for Protocol Usage

• It is suggested that it is advisable to always conduct confirmations within the protocol, despite some arguing that entries in the register also qualify as public instruments due to Article 289.

Legal Value of Notarial Acts

• Article 312 establishes that the probative value of acts is limited to facts visible to the notary, aligning closely with formal deeds and their verification processes.

Distinction Between Deeds and Acts

• A distinction is made between acts confirming facts versus legal deeds; while formally similar, acts do not constitute legal transactions as defined by Article 299.

Nature of Notarial Narration

• The speaker emphasizes that acts are narrations rather than legal configurations, focusing on objective descriptions to avoid subjective interpretations which could lead to disputes.

Requirements for Notarial Interventions

• The discussion highlights requirements for notaries when intervening, including justifying their involvement based on requests from interested parties or third parties (Article 311).

Clarification on Act Definitions

• Article 310 defines acts as documents verifying facts and states they must adhere to public deed requirements with specific modifications.

Key Points on Representation in Notarial Actions

• It’s noted that when a person represents a third party, there’s no need for documentation proving authority unless explicitly required by law.

Diligence and Notary Responsibilities

Interaction with Individuals in Diligence

• The notary, when fulfilling a requirement, does not have an obligation to identify individuals involved in the diligence process.

• Article 806 mandates that documents must be presented and copies added to the protocol; identification of individuals is preferable but not always necessary.

• While it's beneficial for individuals to provide their names and document numbers, it is not mandatory for the requester to prove they have a third-party interest.

Importance of Identification

• Individuals notified during the process should be informed about the notary's role and their right to respond or remain silent.

• The notary must disclose their identity and purpose of the diligence, ensuring transparency in proceedings.

• There has been a growing consensus in doctrine regarding the necessity for notaries to identify themselves as part of maintaining fairness in legal processes.

Conducting Diligences

• Notaries can perform diligences without the requester if it’s deemed unnecessary based on the object of inquiry.

• Accompanying the requester allows for potential adjustments or expansions of requests during proceedings, enhancing clarity and accuracy.

Legal Representation During Diligence

• It is advisable for an attorney to be present during these interactions to provide legal guidance and protect interests if complications arise from responses given by those being questioned.

Technological Considerations

• Utilizing personal devices (cell phones/computers) by notaries is recommended to prevent claims of manipulation; technical support may also be necessary for proper documentation.

• Proper identification protocols are crucial; understanding device data (like IP addresses) helps ensure integrity in documentation processes.

Flexibility in Documentation

• Diligences do not require a single act or writing; they can occur simultaneously or sequentially within one day while maintaining chronological order.

Understanding Legal Procedures and Documentation

The Importance of Daily Unit in Legal Diligences

• The speaker discusses the scheduling of legal diligences, emphasizing that it is feasible to conduct them at different times within the same day.

• They highlight the significance of maintaining a daily unit in legal actions, referencing how memory can influence recollection and documentation.

• A debate arises regarding whether legal acts should be documented immediately or if they can be recorded later based on memory, especially under challenging conditions.

Challenges in Documenting Legal Acts

• The speaker notes difficulties faced when conducting legal actions outdoors under adverse weather conditions, which complicates immediate documentation.

• They propose that while diligences can be performed on-site, formal documentation may be completed later in an office setting.

Authority and Consent in Legal Documentation

• Discussion shifts to Article G, which allows for authorization even if one party refuses to sign; this must be documented properly.

• Clarification is provided that "interested parties" includes both the requester and the person being summoned, who must understand their rights during the process.

Validity and Probative Value of Notarial Acts

• Article 312 addresses the probative value of notarial acts, stating they are limited to what the notary observes directly regarding individuals' identities and declarations.

• Emphasis is placed on documenting statements as factual occurrences rather than contractual content to maintain clarity.

Sensory Perception in Notarial Practices

• The speaker references historical practices where notaries were required to use multiple senses for verification during documentation processes.

• It is noted that all sensory perceptions are considered valid for establishing facts before a notary, reinforcing their role in ensuring accurate records.

Final Thoughts on Protocol and Notification Types

• The discussion concludes with recommendations about various types of notifications (e.g., notification, summons), stressing their importance for proper legal procedures.

Notarial Procedures and Recommendations

Importance of Documentation in Notarial Acts

• A copy of the note sent to a person must be verified to ensure consistency, preventing future disputes about its contents.

• The notary should document the dispatch number on the envelope and confirm their intervention in sending the correspondence.

Handling Notifications and Deliveries

• When delivering a notification (e.g., termination notice), if the recipient is unavailable, leaving it under their door is an option, but documentation of this action is crucial.

• It’s essential to ensure that any notes left are sealed properly to maintain confidentiality and prevent unauthorized access.

Advisory Role of Notaries

• Notaries provide guidance on how to conduct procedures rather than specific legal advice regarding transactions (e.g., advising between sale or exchange).

• Proper advisory includes instructing clients on necessary documentation steps, such as obtaining copies of relevant acts or notes.

Ensuring Fairness in Drawings and Lotteries

• Caution is advised during lottery draws; for instance, ensuring that all balls are returned correctly after each draw to avoid claims of misconduct.

Classification of Notarial Documents

• Notarial documents can be classified by purpose: authorizing activities (like deeds) versus certifying activities (like minutes).

• Documents can also be categorized by form into original documents (produced simultaneously with events) and reproduced documents (copies with derivative faith).

Legal Framework Governing Notaries

• The discussion transitions into legal frameworks governing notaries, referencing Article 325 from the Organic Law of Judicial Power in Santa Fe province.

Legislation Related to Notary Publics

Overview of Notarial Legislation

• The discussion begins with a reference to the existing legislation concerning notaries, indicating that there is a structured legal framework in place.

• The speaker mentions the upcoming focus on Article 326, which pertains to the formation of the protocol, suggesting an important procedural aspect of notarial work.

• There is an emphasis on clarity and understanding regarding the legislative content, hinting at potential complexities within the legal texts being discussed.

• The speaker expresses concern about whether all participants grasped the material presented, highlighting a need for further clarification or questions from attendees.