Escribanía - 03/05 - Parte 1

Name: Escribanía - 03/05 - Parte 1
Uploaded: 2024-07-31T00:00:00.000Z
Duration: 8 h 12 min 33 s

Introduction and Attendance

Opening Remarks

The session begins with greetings and a reminder about the importance of punctuality.

The speaker expresses uncertainty about how to proceed, indicating that frequent pauses may be necessary during the session.

Attendance Check

The instructor starts taking attendance, confirming presence from various participants including Virginia, Carolina, Valent, and Soledad.

A participant mentions being in an audience but remains connected virtually for the class.

Discussion on Notarial Function

Overview of Notarial Function

The speaker introduces the topic of notarial function, emphasizing its legal nature and relevance to understanding notarial activities.

Reference is made to a foundational text by Martínez Segovia on notarial function which is noted as difficult to obtain.

Theoretical Framework

Four theories regarding the role of a notary are introduced:

Functionalist theory (notary as public official)

Professionalist theory (notary as legal professional)

Eclectic and autonomist theories (middle ground perspectives).

Characteristics of Notaries

Similarities with Public Officials

Characteristics aligning notaries with public officials include state appointment and obligations similar to those of public servants.

Legal Obligations

Article 6 of Law 6898 outlines residency requirements for notaries, mandating them to reside in their registered department.

Article 14 emphasizes the obligation for regular office attendance; absence beyond eight days requires prior notice.

Social Functionality

Discussion on how notaries perform social functions through acts that carry public faith and authenticity, suggesting delegation from the state.

Territorial Competence

Understanding the Role of Notaries

Characteristics and Limitations of Notarial Functions

The notary profession has limited characteristics, including incompatibilities that inhibit certain actions, particularly in commercial activities.

There is a debate on whether notaries are state officials or legal professionals; proponents argue they lack permanent ties to the state beyond their appointment.

The state's rigorous regulation of the notarial profession does not equate it to public service, as remuneration comes from clients rather than the government.

Notaries enjoy significant freedom within legal boundaries, allowing them to choose how to advise clients without bureaucratic constraints.

Clients have the liberty to select which notary they wish to engage with for services, emphasizing individual choice in private matters.

Functionalist vs. Professionalist Perspectives

The relationship between clients and notaries is characterized as a private contractual agreement rather than an administrative one.

Functionalist theories highlight the social role of notaries within non-bureaucratic state functions, differentiating between public services and services for individuals.

State functions are categorized into legislative, executive, and judicial branches; however, there’s a distinction made regarding public interest versus individual service needs.

Notaries theoretically cannot refuse requests unless specific conditions apply; this raises questions about their obligations in practice.

Practical limitations exist where a notary may decline requests based on personal circumstances or legality issues.

Obligations and Authenticity in Notarial Practice

A key aspect of notarization involves acting upon request; without such a request, they cannot assume roles like witnesses at accidents.

The act of notarization serves as an official function representing the state but does not classify all actions as public duties inherently.

Critics argue that while notarized documents carry presumption of authenticity, this does not make all aspects of notarization equivalent to being a public official.

Eclectic Theory: Bridging Perspectives

An eclectic theory suggests that while notaries are professionals independent from direct governmental control, they perform essential public functions akin to serving the community's interests.

This perspective emphasizes that when states assign responsibilities related to public faith (fe pública), it regulates a profession rather than designating representatives directly.

Understanding the Role of Notaries

The Dual Function of Notaries

The notary serves a dual role, providing professional advice while safeguarding the interests of clients, which adds a layer of professionalism to their duties.

Defined as professionals in public service, this characterization was established at the first International Congress of Latin Notariat held in Buenos Aires in 1948.

Obligations and Independence

Notaries are required to maintain regular office hours; however, they can be absent for up to eight days with prior notice due to illness.

There is an expectation for notaries to have their offices adequately staffed and open for public service, emphasizing their independence from direct oversight by public inspectors.

Flexibility in Practice

While notaries have set obligations regarding office hours, they possess discretion over how these hours are managed based on personal circumstances or emergencies.

The discussion highlights that female notaries may adjust their schedules during maternity leave while still fulfilling professional responsibilities.

Essential Services During Pandemic

During the pandemic, notaries were classified as essential personnel, allowing them to continue operations despite restrictions affecting other sectors.

This classification enabled them to perform necessary functions such as certifying signatures for urgent legal documents like wills.

Professional Autonomy and Public Service

The autonomy of notaries allows them to navigate complex situations independently while adhering to legal frameworks during crises like the pandemic.

Acknowledgment that each notary operated under personal judgment during challenging times reflects the balance between individual discretion and public duty.

Theoretical Framework Surrounding Notarial Functions

Evolving Definitions and Roles

The definition provided by the Latin Notariat Congress emphasizes that a notary is a legal professional tasked with public functions related to documenting and authenticating agreements.

Characteristics of Latin Notariat

Key characteristics include advising parties involved in transactions, drafting legally binding documents, preserving originals, and issuing certified copies.

Conclusion on Professional Theory

Understanding the Role of Notaries

The Importance of Notarial Responsibility

Discussion on the significance of notaries in legal responsibility, particularly in cases where a notary claims to be a public official versus a professional.

Reference to Borda's influential ideas during the speaker's studies, highlighting his controversial role as Minister of Justice under military governments.

Historical Context and Reforms

Mention of the 1968 reform led by Borda, which was pivotal for its time and marked an important step in legal evolution.

Borda’s clarity in explaining complex legal concepts is noted, emphasizing that discussions around contracts should focus on their fundamental nature rather than unnecessary complications.

Distinction Between Roles

Clarification that notaries are neither purely officials nor entirely autonomous; they embody characteristics from both roles while maintaining independence.

Emphasis on how professional actions do not automatically confer public official status upon notaries.

The Essence of Notarial Function

Acknowledgment that modern advancements could render traditional documentation obsolete if notaries were merely documenters.

Critique of labeling notaries as mere scribes; it overlooks their essential interpretative role within the legal framework.

Interpretation and Adaptation in Law

Exploration of how notaries serve as interpreters who translate social realities into legal terms, linking law with actual events.

Recognition that no two situations are identical; thus, legal frameworks must adapt to unique circumstances encountered daily.

Practical Examples and Innovations

Example provided regarding country clubs' recognition under new civil codes despite existing for decades without formal legislation.

Construction and Property Exchange Insights

The Concept of Property Exchange

Discussion on a construction project where land is exchanged for units, highlighting the complexities involved in such transactions.

Introduction of a system devised by an individual (Fombona) that allows for the exchange of present assets for future ones, emphasizing the innovative nature of this approach.

Challenges in Notarial Functions

Reflection on the courage required to implement new notarial practices when there was no precedent, indicating the evolution of notarial roles over time.

Concerns about the potential obsolescence of notaries due to technological advancements and electronic documentation.

Technological Implications

Examination of issues surrounding digital notarization protocols and how technology renewal every five years complicates document preservation.

Critique of motor vehicle registration systems as lacking transparency compared to notarial records, raising questions about public employment in these registries.

Legal Documentation Nuances

Discussion on legal documents like Form 08 used in car sales, which may lack depth regarding ownership rights and financial arrangements.

Emphasis on the importance of thorough client consultation before finalizing agreements to ensure all legal aspects are covered.

The Role of Notaries in Modern Law

Commentary on how technology can replace certain functions but cannot fully substitute the interpretative role that notaries play in aligning facts with legal frameworks.

Reference to Giuliani's perspective on public officials' impartiality and independence within their professional duties as essential for effective legal practice.

Continuous Professional Development

Importance placed on ongoing training and technical refinement for notaries to maintain high standards in their services.

Mentioning Italy's classification system for public officials, stressing that professionalism ensures unbiased judgment in legal matters.

Adaptation to Legal Changes

Highlighting the necessity for notaries to adapt quickly to changes such as new civil codes, illustrating the dynamic nature of legal practice.

Understanding the Role of Notaries in Legal Frameworks

The Context of Judicial Interpretation

Discussion on how judges will begin to interpret cases under the new civil code in five years, emphasizing the lack of jurisprudence and existing expressions regarding legal processes.

Notarial Autonomy and Functionality

Exploration of notarial mentality and creation, arguing for an autonomous role for notaries as distinct from other professionals or officials.

Legal Application and Creation

Explanation of how notaries apply specific cases to legal frameworks, creating new molds when necessary, highlighting their unique function that resembles public authority but is fundamentally private.

Key Principles in Notarial Law

Identification of core principles such as security, certainty, effectiveness, responsiveness, and permanence within the context of notarial functions under the new civil code.

Distinction Between Public Officials and Notaries

Clarification on Article 289's distinction between public instruments issued by notaries versus those by public officials, indicating a shift in terminology and roles defined by law.

Historical Evolution of Notary Functions

Definition and Historical Context

Reference to historical definitions from 1765 regarding notary responsibilities; emphasizes continuity over centuries despite evolving legal contexts.

Supreme Court Precedents

Mention of Supreme Court rulings related to civil responsibility linked to notarized actions; highlights the importance of legal foundations in understanding current practices.

International Influence on Notarial Roles

Discussion on how international congresses have shaped modern definitions and expectations for notaries since the French Revolution influenced European practices.

Notarial Operations: A Didactic Approach

Understanding Professional Activities

Introduction to "operations de ejercicio" (exercise operations), which are essential for comprehending what a notary does within their professional capacity.

Classification of Activities

Differentiation between various stages in notarization processes; emphasizes that these classifications serve educational purposes rather than strict procedural separations.

Perspectives from Legal Authors

Overview of differing terminologies used by authors like Martínez Segovia and Gatari regarding first audience activities versus formal materials; underscores varied interpretations within legal literature.

Understanding the Authenticator Stage

Overview of the Authenticator Stage

The authenticator stage is referred to as the "second hearing" by Martínez Segobia, indicating a formal process that precedes other legal actions.

Legal Requirements and Procedures

Prior to any action, it is essential to note that approval is necessary. The notary requires an intervention request and cannot act on their own initiative, as stated in Article 10 of the relevant law.

The law specifies that public officials must draft documents only when requested; this emphasizes the need for proper procedural adherence before moving forward.

Interpretation and Guidance

In this initial qualification phase, the notary interprets the parties' intentions and advises them on their current situation versus their desired outcome. This involves integrating their knowledge with what has been presented.

Notaries often face challenges in understanding clients' requests due to miscommunication or terminology differences, which necessitates careful interpretation.

Mediation and Problem-Solving

A notable example illustrates how misunderstandings can arise from differing contexts (e.g., currency types), highlighting the notary's role in mediating between parties to find common ground.

The notary provides solutions such as possession agreements or loans while ensuring all parties are informed about their options.

Legalization Process Explained

Transitioning to Legalization

Following interpretation, there comes a stage of legalization where previous discussions are framed within legal parameters. This includes determining appropriate acts based on what best fits the parties' needs.

Material vs. Formal Legalization

Legalization encompasses both material aspects (choosing suitable acts) and formal requirements (such as drafting deeds). It aims to align party intentions with legal frameworks for validity.

Understanding Capacity and Legitimacy

The effectiveness of transactions relies heavily on understanding each party's relative position concerning one another and their capacity to engage legally.

Notaries must assess whether individuals have legal capacity or if they fall under special provisions that restrict contract abilities, particularly regarding public officials managing assets.

Key Considerations in Contractual Agreements

Special Provisions for Public Officials

There are specific articles addressing incapacity or inability for certain individuals (like public officials), emphasizing restrictions on contracting interests related to properties they manage.

Legal Considerations in Property Transactions

Overview of Judicial and Legal Roles

Discussion on the responsibilities of judges, legal officials, mediators, and their assistants regarding properties involved in legal processes.

Emphasis on the need for caution when dealing with contentious properties, highlighting a case involving an attorney friend that ended poorly during a property auction.

Importance of Title Study

The necessity to verify ownership before proceeding with any transactions; understanding title studies is crucial at this initial stage.

Introduction to the concept of "first audience" where preliminary discussions about property titles and relative situations occur.

Family Law Implications

Clarification on parental responsibility versus traditional terms like "patria potestad," indicating changes in terminology do not alter underlying legal principles.

Discussion on potential encumbrances or restrictions affecting a person's ability to sell property, stressing the importance of understanding these limitations.

Authority and Competence in Transactions

Examination of whether representatives (like managers or attorneys) possess the necessary authority to conduct sales; competence must be assessed.

Overview of current situations compared to desired outcomes in property transactions as part of due diligence.

Formalities in Notarial Acts

Explanation of formal requirements such as configuration, authentication, and authorization within notarial acts.

The process involves documenting discussions accurately after consultations with clients to ensure clarity in intentions.

Legislative Framework

Reference to Article 301 which outlines public document requirements; minimal changes noted under new legislation concerning public acts.

Highlighting the role of notaries in receiving declarations from parties involved and ensuring all elements are properly qualified.

Distinction Between Authentication and Authorization

Clarification that notaries must authenticate documents through public faith while distinguishing it from mere authorization at the end of a transaction.

Understanding Notarial Authority and Procedures

The Role of Notaries in Legal Documentation

The speaker discusses the distinction between what is stated by a notary and the technical study regarding their authority, emphasizing that while a power of attorney may exist, its validity depends on specific faculties granted.

Emphasizes the importance of immediacy in interactions with parties involved in legal documentation, referencing Article 301 which mandates that notaries must personally receive declarations from participants.

Highlights the significance of notarization as an affirmation of truthfulness and authorship, where the notary's signature transforms a document into an official notarized instrument.

Understanding Document Execution

Discusses the process of reading and granting documents, noting that all parties must confirm their agreement with what has been drafted by the notary.

Clarifies that when parties sign, they accept everything articulated by the notary, confirming their intentions align with what was documented.

Authentication and Preservation

Introduces Marín de Segovia’s views on authentication as a public faith assertion covering all aspects of notarial actions beyond just fundamental parts.

Mentions subsequent steps like authentic reproduction and conservation of documents to ensure permanence within legal frameworks.

Applicable Legislation for Notarial Acts

Outlines relevant legislation starting with civil code articles (289 to 313), which govern public instruments and notarized writings as per doctrinal standards noted in Article 301.

Points out similarities between current laws and older regulations while stressing local legislative requirements for formality in documentation processes.

Historical Context and Evolution

Reflects on historical advancements such as typewriters impacting how documents were drafted under outdated judicial frameworks still relevant today (Articles 325 to 356).

Shares personal anecdotes about early challenges faced in notarization practices due to lack of resources at registries dependent on government support for operational needs.

Current Challenges in Notarial Practice

Describes past inefficiencies where notaries had to provide basic supplies themselves due to inadequate funding for registries, illustrating systemic issues affecting service delivery.

Discusses changes brought about by new laws aimed at improving registry operations but notes ongoing struggles related to staffing and resource allocation leading to poor performance.

Understanding the Role of Notaries and Legal Protocols

Overview of Costs and Administrative Responsibilities

The process for obtaining certificates typically takes 7 to 20 days, which incurs additional costs for staff and software/hardware needed to manage information flow.

The administration of registries is managed by the provincial college, which allocates funds based on directives from the registry director, indicating a lack of direct control by the college over registry operations.

Historical Context of Notarial Practices

In earlier times, notaries worked in a physical space where they could access protocols and documents directly with assistance from clerks, highlighting a more personal interaction in legal processes.

The previous system allowed for informal discussions among lawyers and notaries in shared spaces like cafes, fostering collaboration that has since diminished due to operational changes.

Legislative Changes Impacting Notarial Functions

A new agreement was established to transfer responsibility for protocol archives to the College of Notaries, enhancing their role in managing these records effectively.

With Law 8940, notaries gained authority over protocol archives through competitive appointments, emphasizing their responsibility for document custody and preservation.

Innovations in Notarial Services

The creation of a register for acts of self-protection marks an innovative step within notarial practices; this concept has gained popularity recently as part of broader legal protections.

This register allows notaries to document protective actions without disclosing details publicly while ensuring that courts have access to necessary information regarding such acts.

National Integration of Registries

A national registry now connects local testamentary records across provinces, addressing issues where wills might surface post-succession proceedings—an important safeguard against potential disputes.

This integration aims to streamline processes related to last wills and testaments while providing better protection for involved parties.

Transitioning Topics: Legal Codes

Discussion on Educational Systems and Registries

Concerns About Education and Materialism

The speaker expresses concern about the materialistic nature of education, reflecting on their experiences across various educational contexts.

A reference is made to a past event where François Yabas, a professor from the University of Paris, was invited to discuss teaching methods.

Classroom Dynamics and Observations

The speaker describes challenges faced during a class session, including distractions caused by students' discussions.

An anecdote is shared about students discussing an upcoming celebration rather than focusing on academic topics.

Introduction to Legal Registries

The discussion transitions to legal registries, starting with an overview of registral law and its systems.

Different types of registries are introduced, including public and reserved registries, as well as the registry for wills.

Importance of Mandate Registries

The speaker highlights the significance of mandate registries in legal practice, noting that they have been operational for several years.

There is mention of how revocations should be documented similarly to mandates within legal frameworks.

Publicity and Awareness in Legal Practices

Discussion includes the need for better publicity regarding certain legal registrations like self-protection measures.

Emphasis is placed on ensuring all participants in legal processes are aware of their responsibilities concerning these registrations.

Overview of Personal and Real Registries

The conversation shifts towards personal registries such as civil registration and inheritance records.

A focus is placed on real estate registries, which are crucial due to their permanence over time.

Classification of Real Estate Registrations

The primary element in real estate registration is identified as immovable property due to its lasting nature.

Understanding the Historical Context of Property Registration

The Role of Registrars and Early Practices

The registrar's primary duty was to transcribe documents fully into their records, a practice that faced limitations due to the low volume of incoming documents prior to national registration laws.

Before Article 1505, there was no priority system in place; documents were not registered based on their order of submission, leading to potential conflicts in ownership claims.

Insights from Notaries

Notaries played a crucial role historically; they would travel on horseback to collect signatures for deeds before returning days later to register them, highlighting the manual nature of early property transactions.

Increased ownership led to a growing number of titles and owners, complicating the process as registries often contained only extracts rather than full deeds.

Legal Implications of Possession

The concept of possession is significant; it has legal consequences even if it is merely a factual situation. A public deed is now required for transferring possessory rights.

Since 1985, public deeds have been emphasized in Santa Fe for transferring rights, despite earlier codes referencing hereditary rights transfer.

Changes in Registration Practices

Situations arose where possessors could transfer their rights legally through public deeds, allowing for consolidation or "accession" of possessions which could then be defended legally.

Previously, both ownership and possession were recorded together when properties were sold. However, changes in law since June 1985 eliminated the registration of certain possessory actions.

Evolution Towards Digitalization

The traditional method involved incorporating original documents into registries but has evolved over time with new practices emerging that resemble modern digital systems.

In Santa Fe's commercial registry context, original powers were archived alongside authentic copies—a practice that reflects historical methods before digitalization became prevalent.

Challenges with Record Keeping

As record volumes increased (e.g., mandates), concerns arose about managing physical tomes effectively. This prompted discussions about digitizing records instead of simply modifying existing laws.

Understanding the Registration Process

Importance of Mandates and Registrations

The registration of mandates is crucial for professionals to verify if a mandate is still valid, ensuring that revocations or modifications are properly recorded.

Historically, there was a consistent practice regarding registration and reporting activities; however, advancements like electronic signatures have changed this landscape.

In the past, verifying powers granted in specific regions required either trust in the informant or extensive documentation due to lack of digital verification methods.

Evolution of Registration Systems

The incorporation system was utilized not only in property registries but also in mandate registries, allowing for authentic document registration alongside original documents.

The national registry law emphasizes that full versions of documents are not necessary since they exist elsewhere (e.g., notarial archives), focusing instead on essential summaries.

Post-Auction Procedures

After an auction concludes and ownership is transferred, it’s advisable to protocolize all auction actions with proper notes for secure archival.

Various methods exist for registering auctions; legal professionals typically manage these processes until completion without relying solely on notaries.

Legal Considerations in Property Transactions

The code allows for judicial copies to be used for registrations; however, public deeds are preferred as they provide clearer documentation of transactions.

Understanding the difference between forced sales and procedural acts is vital; this distinction often arises within legal discussions about property rights.

Final Recommendations on Documentation

It’s recommended to complete registrations promptly after auctions while considering both notarization and incorporation methods for thoroughness.

Understanding Judicial Copies and Registration Processes

The Role of Judicial Copies in Property Registration

Some individuals requested copies, but the court allowed the withdrawal of files. This led to a complex situation regarding property registration.

A technical regulation was established for submitting judicial copies, which are certified copies necessary for registering certain acts.

In cases like auctions, a file is submitted with official documents and certified copies that must be registered alongside other documentation.

The protocolization process involves documenting all relevant information, including titles and documents provided by the registry to clients.

Initially, there was resistance from lawyers regarding the transition to using judicial testimonies instead of traditional protocols.

Transitioning from Traditional Protocolization to Copy Submission

The original system involved judicial testimonies formatted like public deeds but lacked proper archival protocols within the judiciary.

There was significant pushback due to the workload on judges who had to review lengthy documents; thus, efficiency became a priority.

To enhance security for clients, it is advised to provide both copies and protocolized notes when registering properties.

The registration system relies on brief notes as mandated by law; these notes summarize essential details required for registration requests.

Understanding Folio Real and Its Historical Context

Each entry in the folio real contains minimal data such as owner name, marital status, ID number, and notary details—essentially creating a legal history of properties.

The folio real has evolved through three stages since its inception in 1993: initial paper formats transitioned into more secure digital systems over time.

Despite advancements in digitization, some historical records may still require manual searches through older systems that lack modern structure or security features.

Challenges in Legal Title Studies

When conducting title studies spanning 20 years or more, practitioners often start with the most recent entries before tracing back through older records.

Understanding Registral Systems

Overview of Registral Systems

The discussion emphasizes that registral systems are not purely exclusive; they influence each other, highlighting the importance of a registral structure in civilized countries to incorporate private property.

It is noted that registries can be either constitutive or declarative, which relates to when real rights are established. In declarative systems, real rights exist before registration.

Constitutive vs. Declarative Systems

A constitutive system requires registration for the right to exist, exemplified by automotive registrations where ownership is only recognized post-registration.

The effectiveness of real rights in relation to registration is discussed, distinguishing between non-convalidating (like the current system) and convalidating systems (like the German system).

Non-Convalidating vs. Convalidating Systems

In a non-convalidating system, any defects in documents do not get purged upon registration; thus, issues remain publicized even after being registered.

Conversely, in convalidating systems like Germany's, registration can rectify document defects and protect registered titles from personal claims.

Legal Principles Governing Real Rights

The existence of real rights relies on legal principles such as legality and legitimacy; these principles dictate how rights are formed and recognized within different registral frameworks.

Legitimacy may depend on law or the prestige of the registering authority and can vary based on whether it allows for contrary evidence.

Nature of Registrations

Constitutive registrations monopolize all titling; if something isn't registered, it doesn't exist legally. This contrasts with systems that recognize both registered and extraregistral realities.

There’s an emphasis on accuracy within registries—what is recorded is considered the sole reality. This leads to a lack of simultaneous instrumentations outside the registry.

Tracto Sucesivo vs. Tracto Abreviado

The concept of "tracto sucesivo" (successive tracting), where transactions must be recorded sequentially, differs from "tracto abreviado" (abbreviated tracting), allowing for more streamlined processes under certain conditions.

Understanding Property Registration and Legal Implications

The Process of Property Transactions

Discussion on simultaneous property deeds that are interconnected but not yet registered, highlighting the complexities in ownership transfer.

Emphasis on the importance of public registration for legal recognition of property transactions.

Legal Framework and Registration

Explanation of the need for active promotion and movement in property dealings to ensure proper registration.

Overview of Article 4 from Santa Fe's law regarding the registration of sales promises, with or without possession transfer.

Oponibility and Registration Validity

Clarification on how the enforceability (oponibilidad) of a promise is contingent upon its registration, independent of possession issues.

Introduction to judicial measures like cautelar measures which require formal registration to be effective.

Consequences of Non-registration

Insight into how judicial restrictions or promises become ineffective if not properly recorded in the registry.

Mentioning Article 6435 which mandates the registration of sale promises, despite debates about penalties for non-compliance.

Importance of Possession in Transactions

Discussion on how possession acts as a form of publicity in real estate transactions, alongside formal registrations.

Reference to laws governing pre-horizontal properties and their implications for buyers purchasing off-plan developments.

Historical Context and Current Regulations

Examination of historical laws that protected buyers through proper registrations during construction phases.

Contrast between previous regulations allowing buyer protection against bankruptcy versus current civil code provisions requiring insurance guarantees.

Types of Registries: Declarative vs. Constitutive

Analysis on different types of registries within various legal frameworks, emphasizing distinctions between declarative (real estate) and constitutive (automotive/industrial).

Discussion on how rights are established upon inscription within registries, affecting perceptions around property ownership.

Notarial Activity's Role

Discussion on Registration and Notarial Practices

Overview of Registration Code Changes

The discussion begins with the need for notaries to conduct investigations and qualifications, emphasizing that registration must be established as a foundational requirement.

Historical context is provided regarding the introduction of a new code, which aimed to replace previous registration practices but faced significant pushback from notaries and legal experts across the country.

Numerous articles were proposed in response to concerns raised by jurists and notaries, leading to the decision to maintain Law 17801 instead of implementing reforms suggested in the new code.

Challenges with Constitutive vs. Declarative Registrations

A key issue discussed is the confusion surrounding constitutive versus declarative registrations; specifically, how rights are established through public deeds and their implications for real estate transactions.

The speaker highlights practical challenges in ensuring that buyers have real rights until proper registration occurs, illustrating this with an example involving a property sale transaction.

Concerns are raised about delays in registration processes, particularly in regions like Santa Fe where bureaucratic inefficiencies can hinder timely transactions.

Importance of Digitalization in Registration

The necessity for digitalized registries is emphasized; however, it’s noted that effective control mechanisms must be implemented alongside digital systems to ensure reliability.

There’s a call for registrars to possess extensive knowledge comparable to notaries, suggesting that training in notarial practices could enhance their effectiveness.

Legal Framework and Publicity Issues

The distinction between declarative registrations (which confirm pre-existing rights) versus constitutive registrations (which create rights upon registration) is clarified.

Reference is made to Article 20505 from the Civil Code concerning publicity requirements for real estate transactions; it stresses that unregistered rights may not be enforceable against third parties without sufficient publicity.

Conclusion on Legislative Interactions

Legal Implications of Document Registration

Understanding the Role of Participants in Document Registration

The document's validity is contingent on proper registration; participants cannot claim rights if the document was not registered at the time of participation.

Article 1893 states that those involved in acts cannot invoke a lack of publicity regarding their rights, emphasizing accountability for knowledge of existing titles.

Knowledge of notifications can open various legal avenues for both notaries and lawyers, impacting litigation despite non-compliance with registration requirements.

Responsibilities and Functions in Document Examination

The roles within declarative registries are distinct; notaries examine content while registrars assess compliance with formalities and legitimacy.

Notaries serve as initial qualifiers, ensuring documents meet necessary standards before submission to registries for further examination.

Legal Considerations in Property Transactions

Registrars must verify the continuity of property ownership through records, assessing whether prior transactions were documented correctly.

Issues such as asset encumbrances (e.g., inhibitions on property transfer) require thorough scrutiny by registrars during document evaluation.

Priority Reservations and Their Legal Effects

The concept of priority reservation is crucial; it establishes legal effects tied to certificates issued by registrars, which protect transactions within specified timeframes.

Two critical timelines exist: one for notarization protection and another for actual document registration. Delays can jeopardize legal protections.

Importance of Timely Certificate Requests

A certificate must be requested before executing a transaction to ensure no adverse measures affect the property post-notarization but pre-registration.

The timing between certificate issuance and deed authorization is vital; discrepancies can lead to complications if protective measures are not adequately observed.

Analyzing Simultaneous Instrumentation Scenarios

In simultaneous transactions (e.g., one party selling to another), issues arise when prior ownership documentation isn't available due to pending registrations.

Understanding the Validity of Legal Instruments

Exceptions to Title Requirements

The discussion highlights that while certain legal instruments are valid, exceptions exist regarding the requirement for prior titles. This indicates a nuanced understanding of legal frameworks.

Role of Notaries in Simultaneous Transactions

It is explained that notaries can issue certificates for simultaneous transactions even if they do not hold the title themselves. This raises questions about the nature of client relationships and responsibilities in such scenarios.

Conditions for Valid Registration

The necessity for additional conditions beyond mere registration is emphasized, including good faith and onerous acts. This suggests a complex interplay between different legal systems and their requirements.

Exploring Different Registration Systems

Overview of Australian Registration System

A brief overview is provided on the Australian system, referred to as "acta Torre," which has been implemented successfully in places like Santo Domingo.

Historical Context and Challenges

The historical context reveals that initial adoption rates were low (around 40%), with attempts at incorporation in other countries facing challenges, particularly in 1904.

State's Interest in Property Registration

Importance of Real Folio System

The state’s desire to maintain an organized record of properties is discussed, highlighting issues related to outdated databases and lack of digitalization efforts.

Challenges Faced by Registrars

Registrars struggle with unorganized data, complicating property searches. This points to systemic inefficiencies within property registration processes.

Property Registration Process Explained

Application Submission Requirements

To register a property, applicants must submit detailed plans prepared by surveyors along with proof of ownership rights. This underscores the thoroughness required in documentation.

Dual Examination by Registrars

Registrars conduct both topographical and legal examinations based on submitted documents. They may also consult neighboring parties if doubts arise during this process.

Issuance and Transferability of Title Certificates

Certificate Issuance Process

Upon successful registration without opposition, a title certificate is issued to the buyer. One copy remains with the registry while another goes to the buyer.

Nature of Title Certificates

The title certificate functions similarly to a real folio; it can be transferred through endorsement but requires proper notification within the registry system for validity.

Legal Implications Surrounding Property Ownership

Proof and Good Faith Requirement

For ownership claims to be enforceable against third parties, good faith acquisition and onerous titles are essential. This reflects broader principles governing property law.

Understanding the Registration System

Key Principles of the Registration System

The registration system operates on the principle of distance, requiring a formal request for registration. It emphasizes that all acquisitions or transmissions must be documented, highlighting the necessity of inscription for endorsements.

A crucial feature of this system is the guarantee fund, which not only covers material errors but also protects against insolvency risks. This fund ensures that stakeholders are safeguarded in case of financial failures.

The discussion touches upon personal rights and how they are affected by insolvency within this framework, indicating a comprehensive approach to risk management in registrations.

Characteristics of the Germanic System

The Germanic system is noted as one of the most refined systems available, operating under similar principles such as instance requests and successive tracto (continuity in transactions).

Consent from current titleholders is mandatory for registration; without it, protection does not apply. This highlights the importance of formal consent in maintaining legal integrity.

An abstract act concept is introduced where what gets inscribed isn't necessarily tied to causal legal acts like sales or donations but rather an agreement between parties regarding title ownership.

Differences Between Systems

Unlike other systems where causal titles are explicitly mentioned (e.g., sales), here only agreements between current and prospective titleholders are recorded. This creates a unique distinction in how ownership transitions are documented.

If all requirements for inscription are met, no actions can be taken based on nullity claims related to causal titles since these aren't invoked within this system's framework.

Limitations and Exceptions

In this context, only personal actions can be pursued if issues arise due to lack of participation from registered titleholders. There’s no guarantee fund present to cover potential disputes or errors.

The state manages any discrepancies arising from errors in inscriptions; however, good faith is presumed regarding property ownership claims made by individuals listed as titleholders.

Conclusion and Future Discussions

Upcoming discussions will focus on reviewing articles from civil codes that relate to registration laws. These articles aim to clarify various aspects previously criticized about existing codes while enhancing understanding around real rights situations.

Discussion on New Participants

Introduction of New Members

The speaker mentions two new participants who have registered recently, indicating a welcoming attitude towards their incorporation into the group.

There is uncertainty about one of the new members' identities, with a suggestion that it could be someone named Valeria.

The speaker expresses no objections to the new member joining and encourages open communication regarding any issues.

Virtual Meeting Dynamics

Technical Challenges and Social Media Insights

A virtual meeting is scheduled for Friday, highlighting the ongoing reliance on digital platforms for communication.

The speaker shares an anecdote about receiving calls from a TikTok user with 80,000 followers, reflecting on the unexpected nature of social media interactions.