Escribanía - 27/09 - Parte 1

Introduction and Attendance

Opening Remarks

• The speaker greets attendees, confirming audio functionality and noting a small group present.

• Attendees are acknowledged by name as the speaker takes attendance to manage time effectively.

Technical Issues

• A participant experiences connection issues, leading to confusion about their presence in the meeting.

Course Structure and Exam Preparation

Discussion on Class Format

• The speaker expresses a preference for in-person classes, highlighting past benefits of direct communication with students.

Upcoming Exams

• Mention of upcoming exam schedules prompts discussion on preparation strategies as the academic year progresses rapidly.

Notarial Techniques Overview

Transition from Theory to Practice

• The speaker emphasizes the importance of applying theoretical knowledge to practical notarial situations, focusing on client needs and legal compliance.

Document Creation Process

• After assessing legal qualifications, the next step involves translating findings into formal documents like deeds that must be comprehensive yet clear.

Model Documentation Guidance

Importance of Structured Documentation

• A well-organized document is crucial for efficiency and clarity, especially for those competing for notarial positions.

Example Document Breakdown

• The speaker introduces a model document format that includes essential elements such as headers, parties involved, transaction details, and payment methods.

Payment Details in Notarial Acts

Clarity in Financial Transactions

• Emphasis is placed on clearly documenting how payments are made during transactions to avoid ambiguity or disputes later on.

Ownership Transfer Considerations

Real Estate Transactions and Possession Rights

Understanding Occupied Properties in Sales

• The discussion begins with the rarity of selling an occupied property, emphasizing that the seller must transfer possession rights to the buyer.

• Common scenarios include sellers needing time to vacate or buyers being current tenants; procedures must be followed for a smooth transition of possession.

• Reference is made to legal articles (1892 and 1923) that outline possession rights and effective delivery, highlighting that symbolic delivery (like handing over keys) is insufficient in this context.

Legal Framework for Possession Transfer

• Article 1892 states that possession can establish real rights without formal transfer if the property is held in the owner's name.

• If a tenant purchases a rented property, they begin possessing it on behalf of the new owner without needing additional formalities.

Tenant Involvement and Consent

• There’s debate about whether tenants should confirm their new status under the new ownership; practical approaches often involve assigning rental contracts to maintain relationships between parties.

• Sellers assert that properties sold are not their primary residences, which relates to spousal consent requirements during transactions involving marital assets.

Spousal Consent Considerations

• If a property is jointly owned or part of community property, spousal consent may be necessary; sellers clarify their situation regarding marital residence status.

Addressing Capacity Issues in Transactions

• The importance of ensuring all parties have legal capacity to engage in transactions is highlighted, referencing laws protecting against fraud by incapacitated individuals.

Financial Transparency Requirements

• A section discusses financial disclosure obligations related to money laundering regulations, stressing the need for buyers to prove legitimate sources of funds used in transactions.

Justifying Source of Funds

• Buyers may need to explain how they acquired funds for purchasing properties; examples include proceeds from divorce settlements or inheritances.

• The necessity for clear documentation regarding fund origins is emphasized as part of compliance with financial regulations.

Understanding Property Ownership and Notarial Practices

Manifestation of Property Ownership

• The acquisition of property requires a formal declaration to establish ownership, which is crucial in the context of notarial practices.

• Prior to the 2015 Civil Code, there was significant debate regarding how to prove that funds used for property purchases were indeed personal assets, with no requirement for spousal acknowledgment.

Theories on Proving Ownership

• Two main theories emerged: one focused on detailed justification of asset origins (favored by lawyers), while the other emphasized family relations and avoiding disputes over ownership recognition (favored by notaries).

• The new Civil Code incorporates both perspectives, requiring proof of personal funds and spousal confirmation to prevent future disputes.

Importance of Spousal Acknowledgment

• It is essential for spouses to acknowledge the legitimacy of funds used in property transactions to avoid complications arising from potential gambling or mismanagement of inherited money.

Notarial Documentation Structure

• In notarial documentation, it is suggested that ownership declarations should be placed at the beginning as part of the act rather than administrative details.

• Clear structuring in documents helps avoid confusion; sections should be well-defined without leaving unnecessary blank spaces.

Financial Certifications and Tax Considerations

• Notaries must reference all financial certifications related to taxes, including any existing liens or mortgages on properties being transferred.

• Detailed tax implications must be documented, including potential exemptions or clauses affecting payment obligations.

Practical Guidance for Notaries

• The speaker emphasizes providing practical guidance through models that can be adapted based on specific cases encountered by notaries.

Insights into Mortgage Documentation

• Discussion includes insights from a notable work by Marcelo Miranda regarding mortgage documentation clarity and structure compared to traditional bank documents.

Understanding the Role of Notarial Contracts

The Nature of Mortgage Contracts

• A mortgage contract is essential as it establishes the mortgage itself, often linked to other contracts such as loans or sales agreements.

• It is crucial for notaries to clearly distinguish between different acts involved in these contracts, particularly when detailing loan clauses.

Detailing Loan and Mortgage Clauses

• When documenting a loan, all relevant details must be included: amount disbursed, repayment terms, interest rates, and payment schedules.

• For mortgages, specific obligations must be outlined such as tax payments and communication regarding property possession issues.

Common Clauses Across Contracts

• There are common clauses that apply to both loan and mortgage contracts; for instance, defaulting on payments can lead to early termination of terms.

• Understanding which clauses are unique to each contract versus those that overlap is vital for clarity in legal documentation.

Importance of Contextual Information

• Notaries should provide comprehensive background information about the parties involved and the property's fiscal status within the documentation process.

Transitioning to Notarial Acts

Distinction Between Legal Documents

• The new civil code necessitates a clear distinction between legal documents (escrituras) containing legal acts and notarial records (actas), which verify facts.

• Articles 299 and 310 outline these definitions clearly; escritura refers to formal legal instruments while acta pertains to factual verification documents.

Regulatory Framework Changes

• Recent changes have clarified previous ambiguities regarding fact verification in notarial practices; now there exists dual regulation addressing both substantive law and procedural norms.

Notary Practices in Santa Fe

Local Regulations Impacting Notaries

• In Santa Fe, local regulations have been established to address minor notarial actions where certification takes precedence over advisory roles.

Introduction of Intervention Records

• The creation of an "intervention record" allows for better tracking of notarial actions from their inception under local guidelines.

Regulatory Framework Overview

Key Provisions for Notaries

Understanding the Role of Notaries in Legal Documentation

Overview of Article 12 of the Law

• The speaker discusses Article 12, emphasizing that only registered notaries can authorize public documents and certify authenticity of signatures, digital prints, and contract validity.

• Notaries are responsible for various tasks including conducting inventories, certifying existence of individuals or entities, and issuing testimonies related to commercial records.

• Article 10 outlines the powers granted to notaries under Article 12, reiterating their role in certifying signatures on private documents in their presence.

Functions and Responsibilities of Notaries

• Notaries can certify signatures made by representatives on private documents and issue certificates confirming the existence of physical or legal persons.

• They also serve as secretaries for arbitration tribunals and must ensure timely submission of documents to judicial or administrative authorities.

Practical Implications for Legal Processes

• The speaker highlights concerns regarding deadlines in legal processes when using electronic systems; delays could lead to missed deadlines if submissions are not processed immediately.

• It is noted that while putting a charge (a formal notice) on a document is rarely used now, it remains an option for urgent cases.

Record Keeping and Regulations

• The importance of maintaining a "register of interventions" is discussed; this record must be clear and allow easy identification of notarized actions involving people or assets.

• Changes in regulations mean that specifying monetary amounts involved in certifications is now optional rather than mandatory.

Compliance with Legal Framework

• The register will include details about sent correspondence, ensuring all documentation is accounted for during inspections as per higher regulatory standards.

Registro de Intervenciones y su Importancia

Protocolo y Registro de Intervenciones

• El registro de intervenciones se elabora de manera similar al protocolo, pero no son intercambiables. Cada uno tiene su propio uso específico.

• La numeración fiscal del registro es muy parecida a la del protocolo, con un sistema diseñado para evitar fraudes y anelados de fechas.

Usos Comunes del Registro

• Este registro se utiliza principalmente para la certificación de firmas y fotocopias, así como en casos específicos como actas de sorteo.

• La certificación de firmas debe realizarse en presencia del escribano, quien otorga fe pública sobre la firma.

Certificación y Fe Pública

• La fe pública implica que el escribano atestigua que una persona firmó en su presencia, lo que hace indiscutible la autenticidad de la firma.

• Es importante distinguir entre certificaciones por cotejo (como las realizadas por bancos) y aquellas que tienen fe pública; esta última es más robusta.

Fotocopias y Cotejos

• Las fotocopias solo pueden ser certificadas si fueron realizadas en presencia del escribano; no se puede certificar simplemente por cotejo.

• La complejidad del asunto influye en cómo se manejan las certificaciones; situaciones simples pueden ser tratadas con menos rigor.

Reflexiones sobre Certificaciones

• En Santa Fe, el registro se centra en certificaciones de firmas y fotocopias, aunque este tema ha sido ignorado por leyes más amplias.

• Se discute cómo estas prácticas pueden acercar el derecho notarial al modelo anglosajón, lo cual genera tensiones dentro del gremio notarial.

Críticas a la Certificación de Firmas

• Un economista criticó a los colegios notariales por hacer lobby para obtener certificaciones; sin embargo, esto refleja una falta de comprensión sobre el valor real de estas prácticas.

• A pesar de las críticas hacia las certificaciones, muchos notarios sienten que este proceso es un servicio a la comunidad más que una fuente directa de ingresos.

Conclusión sobre Prácticas Notariales

Understanding Signature Certification in Banking

The Role of Banks and Identity Verification

• Banks require thorough documentation from clients, especially concerning loans taken online, to prevent identity theft and fraud.

• There are numerous cases where individuals claim they were victims of identity theft when applying for bank credits, highlighting the importance of secure processes.

Legal Framework for Signature Certification

• The new Civil Code has elevated the significance of signature certification, making it a recognized legal requirement.

• Article 314 states that anyone disputing a document's authenticity must confirm whether the signature belongs to them; heirs can only state ignorance regarding signatures.

Implications of Recognized Signatures

• A certified signature on a private instrument cannot be contested by those who have acknowledged it unless there are flaws in the recognition process.

• This legal framework provides banks with assurance regarding the validity of signatures on documents they receive.

Practical Application in Notarial Acts

• The requirements for notarial acts have been relaxed under the new code, similar to how private instruments are treated.

• Notarial acts do not require letterhead but should start with an act number followed by essential details about the parties involved.

Process for Certifying Signatures

• When certifying a signature, minimal personal information is necessary; identification is confirmed through document presentation.

• The act should clearly state that the individual requests their signature to be certified in front of the notary public.

Importance of Documentation and Security Measures

• Historical practices emphasized security during certification; original documents were often used to prevent forgery or alterations.

Certification of Documents in Notarial Practice

Importance of Document Certification

• The speaker emphasizes the need to relate the number of pages in a document during certification, ensuring all requirements are met.

• When acting on a document, it is crucial to include a small note or seal indicating that the certification was performed on a specific page of notarial action.

Process of Relating Documents and Pages

• The speaker explains that when signing documents, it's essential to reference both the document and its corresponding page number for clarity.

• A detailed description must be included in the certification page, outlining what is being certified and confirming that signatures were made in presence.

Complexity of Notarial Actions

• The process is described as more time-consuming and complicated than standard deeds due to the necessity of linking actions with specific documents.

• It’s important to provide context about what is being certified (e.g., guarantees for loans), ensuring future verification can occur if needed.

Regulatory Framework for Signature Certification

• There should be consistency between certifications and their respective documentation; summaries must be clear in both act and certification pages.

• The speaker mentions regulations from the notary college regarding signature certifications, which guide proper practices.

Legalization Risks and Responsibilities

• The importance of adhering to established regulations for signature certifications is highlighted; failure may lead to issues during legalization by the notary college.

• If certifications do not comply with regulations, there’s a risk that legalizations will be denied by the notary college.

Ethical Considerations in Notarial Acts

• Notaries must abstain from acting on documents containing clauses contrary to laws or morals; this ensures ethical compliance within their practice.

• Questions arise regarding foreign documents' validity; reliance on legalized signatures from other jurisdictions can simplify processes but requires careful consideration.

Legalization of Real Estate Transactions

Legal Requirements for Real Estate Sales

• The legalization of real estate transactions typically requires a public deed, as powers to sell properties must also be executed through public documentation.

• There is a tendency among legal institutions to avoid legalizing private powers of attorney, which complicates the process when such documents are presented for signing.

• Essential requirements for notarial acts include details like act number, location, date, and the purpose of the notary's intervention.

• Notaries may certify signatures without needing to verify the identity of individuals representing companies unless required by external entities like banks.

• It is crucial for notaries to document their observations regarding the authority of signatories in order to prevent issues during subsequent presentations at banks or other institutions.

Certification Process and Documentation

• Notaries should clearly state that they witnessed the signing in their certification documents, ensuring transparency about who signed and under what capacity.

• While it’s not mandatory to provide proof of representation, doing so can help avoid complications when documents are submitted elsewhere.

• When certifying copies, it is important to indicate whether the original document was viewed or if only a copy was certified; this distinction helps maintain clarity in legal processes.

• The regulations emphasize that if a photocopy is certified from another photocopy, this must be explicitly stated in the documentation provided by the notary.

• Notaries need to ensure all relevant information about certifications is included in their records for future reference and verification.

Handling Multiple Documents

• In cases where multiple acts are needed due to various submissions (e.g., bank requirements), it may be practical to consolidate them into one act with separate certifications for each document involved.

• Common sense plays a vital role; if several documents pertain to one transaction or submission process, they can often be handled together efficiently within one act.

• If different sections require separate submissions but relate back to one overarching issue (like a loan application), it's advisable to create individual certifications while maintaining an organized single file structure.

• Each document should be properly signed by the notary; this ensures accountability and traceability across all related paperwork submitted together.

• Final documentation should summarize all certified copies along with their respective folios clearly indicating how many pages were involved in each certification process.

Digital Signatures and Certification Procedures

Overview of Digital Signature Certification

• Digital signatures must be affixed to a document consisting of multiple pages, which should be bound by the notary's seal and signature. The number of pages is recorded in a special certification sheet.

• Each section of the document containing digital signatures must indicate the corresponding page number from the certification sheet, along with the date and place of certification.

Special Cases in Signature Certification

• In cases where a document already contains digital signatures, the notary must require an acknowledgment note confirming the content and prior signatures. The requesters must then sign or provide their digital signature for certification.

• This procedure is particularly relevant when certifying older documents, such as contracts signed days before. Notaries cannot certify these without proper acknowledgment due to chronological order requirements.

Ratification Process

• A written statement should follow any contract that reaffirms current dates and parties involved. This serves to validate previous agreements while ensuring all parties confirm their commitment.

• The ratification process involves creating a brief document where individuals reaffirm their original signatures on prior contracts, thus providing legal coverage from that moment forward.

Handling Unfinished Documents

• Situations often arise where documents are unsigned but need notarization. For instance, if one party signs while another does not, it’s essential to clarify this in the act of certification.

• When certifying contracts involving absent parties (e.g., rental agreements), it's crucial to note discrepancies between contract dates and actual signing dates during notarization.

Certifying Blank Documents

• Notaries can certify signatures on blank documents under specific regulations; however, this scenario is rare. More commonly encountered are incomplete forms requiring signature verification.

• It’s important for notaries to record any blanks within documents during certification clearly so that there is no misunderstanding about what was signed.

Challenges with Foreign Language Documents

• Certifying foreign language documents poses unique challenges; notaries cannot legitimize acts that contradict moral standards or legality.

Understanding Notarial Certification in Foreign Languages

The Role of Notaries in Certifying Foreign Documents

• The discussion begins with the challenges posed by globalization, particularly regarding the certification of signatures or digital impressions on documents written in foreign languages.

• A notary must indicate their understanding of a foreign language when certifying documents. If a document is presented in English and the notary understands it, they must state this clearly in both the certification sheet and the act.

• In cases where a notary does not understand the foreign language, if the requester claims to know it, they have two options:

• B1: Document this circumstance in both the act and certification sheet.

• B2: Require a prior translation by an authorized interpreter or translator.

Legal Considerations for Notarial Actions

• The Civil Code allows notaries to consent to translations when there are no registered interpreters available. This requires documenting such circumstances within both the act and certification.

• Emphasis is placed on ensuring that individuals fully understand what they are signing, especially when documents are either blank or written in a foreign language. Notaries have a responsibility to prevent misunderstandings.

Class Structure and Future Sessions

• The session concludes with an invitation for questions from students about these legal aspects of notarization. There is an acknowledgment that virtual classes can complicate discussions.

• Plans for future classes include transitioning into topics related to cartography and real estate, highlighting the importance of face-to-face interaction for effective learning.

• There is confusion regarding class schedules due to changes made by faculty administration; students express concerns over whether upcoming sessions will be virtual or in-person.

Communication Challenges Among Students and Faculty

• Students discuss discrepancies between communicated schedules and actual class formats, indicating potential miscommunication within faculty announcements about class settings (virtual vs. physical).

• A student mentions an activity planned after class involving visits to registries, reinforcing that practical experiences complement theoretical knowledge gained during lectures.