Escribanía - 30/08 - Parte 1

Discussion on Legal Procedures and Reforms

Introduction to the Session

• The session begins with informal greetings and background chatter among participants.

Overview of Legal Articles

• The speaker introduces the topic of discussion, focusing on organic law and specific articles related to legal procedures.

Key Articles Discussed

• Article TR is mentioned, specifically its lack of clarity regarding testimony. The speaker notes that this article has been a subject of debate.

• Reference to the old code (Article 2006), which mandated notaries to provide copies upon request, highlighting changes in obligations under new regulations.

Changes in Copy Regulations

• Discussion on how the previous code addressed loss or destruction of documents, emphasizing that parties could request additional copies unless there were pending obligations.

Obligations and Copies

• Clarification that if obligations were fulfilled, creditors could not demand further compliance for already completed duties. This led to significant discussions within legal doctrine.

New Code Insights

• Transitioning to the new code (Article 308), it is noted that all parties must now receive copies, contrasting with previous stipulations where only requesting parties received them.

Implications for Notarial Practices

Understanding the Process of Obtaining Copies of Legal Documents

The Role of Testimonies in Property Ownership

• The discussion begins with the importance of testimonies, noting that each case is unique and requires careful consideration. Two copies are typically issued for property ownership documentation.

• It is emphasized that when a copy is lost, it is not mandatory to provide a reason; however, it is considered good practice to do so. This helps establish credibility in the request.

• The speaker mentions that banks often retain original testimonies as part of mortgage agreements, which complicates the process for individuals seeking second copies.

• There’s an acknowledgment that some banking practices may be seen as abusive since they require clients to leave their testimonies with the bank as collateral against loans.

• A call for clarity in legal obligations regarding testimony requests is made, stressing that individuals should articulate why they need a second copy without violating any existing clauses in their mortgage agreements.

Legal Obligations and New Code Implications

• The new code introduces significant changes regarding pending obligations related to property documents. It clarifies conditions under which copies can be requested based on whether obligations are fulfilled or still pending.

• The speaker critiques Article 349 for its complexity and lack of clarity, suggesting it attempts to consolidate various provisions from previous codes but fails to do so effectively.

• There’s a suggestion that requesting a certificate of registration could help verify ownership status when applying for a second copy, especially if the applicant has sold the property previously.

Handling Sold Properties and Documentation Practices

• If a property has been sold, proper procedures dictate that notaries must cancel or annotate original testimonies to reflect this change in ownership accurately.

• In certain jurisdictions like Capital Federal, there are established norms requiring adherence to legal frameworks when issuing document copies.

• The director's role in managing protocols and ensuring compliance with applicable laws during testimony issuance is highlighted as crucial for maintaining legal integrity.

Conclusion on Document Issuance Procedures

• Clarification on how testimonies should be issued according to Articles 350 through 352 emphasizes who holds authority over these documents—only designated officials can issue them while protocols remain under their control.

Notarial Records and Their Regulations

Overview of Notarial Testimonies

• The article 351 states that public deed testimonies can be handwritten, typed, photocopied directly from the original matrix, or produced by any mechanical means. All pages must be sealed and published by the notary responsible for them.

• Variations between the testimony text and its respective matrix are addressed; fiscal taxes corresponding to the number of pages in the matrix must be noted on the last page where the notary will also insert a confirmation.

Legal Framework Governing Notarial Instruments

• The local laws regulate how testimonies should be handled. The Organic Law of the province specifies that testimonies can be created manually or mechanically, including photocopies from protocols.

• Historically, stamped paper was significant as a source of state revenue. Current practices allow for photocopies but require payment for their issuance.

Modern Practices in Notarial Documentation

• The process has been simplified; now there is mandatory use of specific testimony sheets similar to protocol sheets with fiscal numbering and QR codes for security.

• These testimony sheets include various security measures to prevent forgery, ensuring authenticity through features like watermarks.

Differences Between Testimonies and Copies

• Article 52 allows parties to request simple copies of registered deeds on common paper. However, these copies lack probative value unless issued by a judicial authority.

• Key differences between testimonies and copies include material requirements (special paper), graphical standards, and essential elements like "concuerda," which confirms accuracy against the original matrix.

Importance of "Concuerda" in Notarial Processes

• "Concuerda" signifies that a copy matches its original matrix. This practice ensures accountability from notaries regarding document accuracy.

• The quality of paper used is crucial; it must meet specific criteria outlined in regulations. Concuerda statements were traditionally placed at the end of testimonies confirming fidelity to originals.

Implementation of New Security Measures

• A new requirement mandates using a "foja de concuerda," which includes security features akin to those found on testimony sheets and protocols.

• Both types of sheets are acquired through official channels with tracking mechanisms established for accountability in distribution among notaries.

Practical Application in Notarial Workflows

• In modern workflows involving computers, transcriptions from protocols are made while ensuring signatures are included as proof that documents were duly signed during execution.

• After transcription completion, it’s necessary to add a legend indicating it is an official testimony along with its corresponding concuerda number for traceability purposes.

Understanding the Differences Between Testimonies and Simple Copies

The Nature of Testimonies vs. Simple Copies

• The speaker expresses a sense of security when discussing testimonies, indicating that they feel more at ease when there is agreement on the testimony provided.

• A distinction is made between testimonies and simple copies based on paper quality and handwriting; testimonies are considered more formal due to these factors.

• Reference to Article 289 suggests that certain documents are required for legal purposes, emphasizing that not all public instruments suffice for proving property ownership or mortgage claims.

Legal Acceptance of Copies

• The speaker cites jurisprudence where courts have accepted mortgage actions with copies, highlighting a shift in how copies are viewed legally.

• It is noted that judicial orders can mandate the request for simple copies, which were previously deemed less significant.

Importance of Proper Documentation

• Emphasis is placed on the necessity of using special paper for testimonies as mandated by professional standards, contrasting this with simpler documentation methods.

• Clarification about what constitutes valid documentation in real estate transactions; specifically mentioning the importance of having complete details like volume and folio numbers in deeds.

Understanding Document Value

• The speaker explains that while parties receive simple copies post-signing, these do not hold probative value compared to original documents or testimonies.

• There’s an assertion that a copy serves merely as knowledge rather than proof of rights; it indicates awareness but does not substantiate legal claims.

Practical Implications in Real Estate Transactions

• Discussion around concerns regarding document handling during signings; clarifying misconceptions about single versus multiple document exemplars in private instruments.

• The process for obtaining a testimony involves creating an exact copy from the original matrix document, ensuring its integrity through special attestations and formats.

Registration and Legal Validity

• After transcription, it’s crucial to note specific concordance numbers related to testimonies for proper registration purposes, which serve as titles for legal movement within property law.

• A clear distinction is made regarding the limitations of simple copies—they do not provide sufficient evidence for establishing ownership or transferring rights under law.

Conclusion on Document Types

• Final thoughts emphasize that while simple copies may inform individuals about past transactions (like mortgages), they lack authority in legal contexts such as ownership transfer or mortgage validation.

Understanding the Process of Issuing Second Copies of Legal Documents

The Importance of Accurate Documentation

• The speaker emphasizes the necessity of clarity in legal documentation, particularly when issuing second copies or testimonies. They mention a colleague's critique regarding repetitive phrasing to ensure understanding.

• It is crucial for the notary to annotate any marginal notes on the testimony if there are changes such as a mortgage or sale, which could affect its validity for future use.

• A first copy may contain various attestations; however, if it lacks essential information, requesting a second copy from another notary could lead to complications if that document appears clean and unencumbered.

Distinctions Between Document Types

• The difference between testimonies and simple copies is highlighted, focusing on the concept of "concordance" which ensures that documents match accurately.

• Simple copies lack probative value unless issued by judicial order. This distinction is vital for understanding how different types of documents can be utilized in legal contexts.

Addressing Errors in Documentation

• With advancements in technology, discrepancies between original documents and their copies have become less common. However, errors can still occur during data entry or transcription processes.

• When correcting errors in testimonies, it’s important to reflect accurate information without retaining previous mistakes. The corrected testimony should represent the current state accurately.

Protocol and Marginal Notes

• Notaries must ensure that any corrections made are documented properly within the protocol. This includes noting any discrepancies found during review before signing off on a document.

• If an error occurs during transcription but is caught before finalization, it should be rectified appropriately without needing to transcribe incorrect details verbatim.

Legal Framework Surrounding Testimonies

• Articles 353 through 355 outline procedures for issuing simple copies and certifications by notaries. These articles emphasize maintaining proper records and ensuring all necessary annotations are included with each document issued.

• Notaries must leave clear records indicating when a second testimony has been issued to avoid confusion regarding multiple versions of a document existing simultaneously.

Notes on Notarial Practices and Marginal Notes

Importance of Marginal Notes in Notarial Acts

• The speaker emphasizes the necessity of making marginal annotations for any actions taken after a notarial protocol, such as requesting a second testimony. This ensures clarity regarding the date and purpose of the request.

• Marginal notes are also useful for correcting errors made by the notary. However, they cannot alter anything that has already been signed or agreed upon by the parties involved.

• An example is provided where if a document lacks essential information (like an ID number), it cannot be added post-signature but can be rectified through a marginal note indicating the oversight.

• These corrective or clarifying marginal notes serve to address minor oversights without affecting the original intent or agreement between parties.

• The speaker discusses how these notes can clarify details about agreements, such as marital consent, which may have been omitted during initial documentation.

Procedures for Revocation and Documentation

• When revoking powers of attorney, it is crucial to document this revocation with a new writing while also noting it in the original power's record to maintain transparency.

• The importance of maintaining accurate records is highlighted; if there’s a revocation noted in one document, it must be reflected in all related documents to avoid legal complications.

• The speaker stresses that notaries must ensure proper publicity regarding these changes so that all relevant parties are informed about any alterations or revocations.

Legislative Framework and Notification Methods

• A reference is made to legislative requirements stating that every notarized testimony must include a marginal note confirming its issuance along with necessary details like date and requester’s identity.

• The discussion transitions into Article 356 of the Organic Law concerning notifications related to deeds or acts. It outlines acceptable methods for notification including personal delivery, certified mail, or telegram.

• If notifications are delivered personally, they should include either the recipient's signature or indicate their refusal to sign. This adds an extra layer of accountability in communication processes.

Clarification on Types of Documents

• The speaker reflects on different types of documents within notarial practices—specifically distinguishing between formal deeds and acts—and their respective notification protocols under current legislation.

• There’s mention of historical context regarding act documentation in Santa Fe prior to recent legal updates which now allow more structured formats similar to those seen in formal deeds.

Understanding Notification in Credit Assignment

Importance of Notification in Credit Assignment

• The discussion emphasizes the significance of notifying a debtor about the assignment of credit, referencing concepts from both old and new civil codes.

• It is noted that under the previous code, notification led to an embargo favoring the assignee, highlighting its critical role in ensuring the debtor's awareness of their obligation to pay the new creditor.

• The speaker stresses that proper documentation and timely notification are essential to avoid disputes regarding multiple notifications and their implications on payment responsibilities.

Methods of Notification

• The speaker introduces various methods for executing notifications, including immediate notifications by a notary public or personal delivery.

• A distinction is made between personal delivery and sending documents via mail, with emphasis on the importance of direct communication for clarity.

• Marginal notes can be used as a method for documenting notifications within legal protocols, allowing for clear records of actions taken.

Legal Documentation Practices

• The process involves creating a record at the time of notification, which should ideally occur immediately after executing relevant legal documents.

• There is mention of maintaining continuity in documentation practices to ensure all necessary information is captured without gaps or ambiguities.

Separate Acts and Notifications

• The possibility of conducting separate acts for notifications is discussed; this allows flexibility in how notifications are documented while still adhering to legal requirements.

• This approach enables notaries to act based on prior requests without needing simultaneous presence from all parties involved during each act.

Conclusion and Questions

• As the session concludes, participants are invited to ask questions regarding any uncertainties related to what has been covered about credit assignment laws and practices.

• Technical issues with audio quality are acknowledged, prompting discussions about potential solutions before transitioning into further topics.

Classification of Notarial Documents

Types Based on Object and Activity

• Notarial documents can be classified based on their purpose: either as authorizing activities (e.g., deeds), or certifying activities (e.g., certificates).

Classification by Form

• Documents may also be categorized as original or reproduced; originals are created simultaneously with documented events while reproduced documents serve as copies representing original instruments.

Characteristics of Original vs. Reproduced Documents

Class Structure and Legal Technique

Introduction to Class Format

• The speaker expresses a preference for in-person classes, especially when discussing technical material related to legal writing. Virtual format is currently unavoidable.

Understanding Legal Technique

• The speaker introduces the concept of legal technique, referencing Carlos, who states that theory teaches knowledge, practice teaches action, and technique teaches how to act effectively.

Application of Techniques

• The discussion emphasizes that sciences require practical application through techniques. The effectiveness of achieving goals depends on selecting appropriate means.

Legal Techniques Explained

Definition of Legal Technique

• Legal technique is defined as the method for creating legal norms and applying them to specific cases. It includes legislative formulation and application techniques.

Types of Legal Techniques

• The speaker distinguishes between:

• Legislative Technique: Involves formulating laws.

• Application Technique: Divided into conflict resolution (jurisdictional technique) and normal situations (administrative jurisdiction).

Notarial Technique Overview

Notarial Functions

• Notarial technique consists of operational methods used by notaries for effective professional tasks. This requires skillful execution based on theoretical knowledge and practical experience.

Importance of Skill in Notarial Work

• A summary from Pelosi highlights that notaries must apply their theoretical knowledge adeptly while managing various resources during their operations.

Operations in Notarial Practice

Breakdown of Operations

• The speaker revisits the concept of notarial operations, emphasizing the need to integrate theoretical knowledge with practical applications in real cases.

Classification of Operations

• Operations are categorized into materials (first audience tasks like qualification, legalization, legitimization) and formal aspects. These categories are interconnected rather than strictly separate steps.

Interpreting Client Intentions

Role of the Notary

• Emphasizes the importance of interpreting client intentions accurately during initial consultations. Article 301 mandates that notaries must directly receive declarations from all parties involved.

Challenges in Interpretation

• Clients may have unclear or incorrect concepts about their needs; thus, it’s crucial for notaries to clarify these intentions effectively during discussions.

Consultation Practices

Importance of Client Communication

• Highlights a case where a notary failed to ask clients about their true intentions before proceeding with documentation—underscoring the necessity for thorough inquiries during consultations.

Understanding Property Regulations and Tax Implications

Overview of Municipal Regulations on Property Subdivision

• The speaker discusses the importance of considering tax aspects when dealing with property transactions, using a friend's case as an example.

• Emphasizes that municipal regulations focus on livability rather than economic factors, highlighting requirements for air circulation and other living conditions.

• Describes how subdivisions can be circumvented through horizontal property ownership, which is not explicitly prohibited by municipal laws.

Case Study: Property Division Among Heirs

• A scenario is presented where a friend built multiple units intending to divide them among his children; one unit was sold to finance construction.

• Discusses the implications of selling under property horizontal (PH), noting that it incurs higher taxes compared to direct real estate transfers.

Tax Considerations in Property Transactions

• Highlights the difference in taxation between selling PH properties versus indivisible land portions, stressing that individuals face higher tax rates.

• Suggests a strategy where instead of selling individual units directly, one could donate shares of common property to minimize tax liabilities.

Importance of Understanding Client Intentions

• Stresses the need for clear communication with clients about their intentions regarding property purchases and potential donations or sales.

• Explains scenarios involving parental responsibility in purchasing properties for children, emphasizing legal considerations based on funding sources.

Legal Framework and Steps in Property Transactions

• Outlines different cases encountered by professionals when handling property divisions and emphasizes understanding client goals before proceeding.

• Discusses the necessity of proper classification during initial assessments to avoid unnecessary taxation issues later on.

Legalization Process in Real Estate Transactions

• Introduces the concept of legalizing transactions by aligning them with existing laws while interpreting client desires effectively.

• Differentiates between material legalization (executing actions legally) and formal legalization (ensuring documentation meets legal standards).

Legal Considerations in Property Donation

The Role of Family in Property Transactions

• A discussion begins with a scenario where an individual seeks to have their father donate property without the knowledge of their sibling, highlighting potential legal issues.

• Reference is made to Article 242, which states that a donor must provide sufficient guarantees for the preservation and restitution of the donated property before transferring rights.

Legal Protections and Requirements

• It is emphasized that legal frameworks exist to protect all parties involved in property transactions, particularly when family members are involved.

• Historical practices are mentioned where siblings had to confirm that they were aware of any donations made by parents, ensuring transparency and fairness among heirs.

Implications of Unequal Donations

• A hypothetical situation illustrates the potential conflict arising from unequal donations (e.g., one child receiving a house while another receives cash), stressing the importance of documenting such transactions.

• The speaker suggests preemptively establishing proof regarding financial gifts between siblings to avoid disputes after a parent's passing.

Conclusion and Next Steps