Escribanía - 26/07 - Parte 1

Class Introduction and Attendance

Opening Remarks

• The session begins with greetings, indicating a virtual class setup. Participants are welcomed warmly.

• The instructor checks attendance, confirming that most students are present and engaged after their vacations.

Technical Issues

• A participant mentions connection issues, highlighting the challenges of virtual learning environments.

• Discussion about ensuring all students can connect properly for the exam preparation is initiated.

Understanding Documentos Habilitantes

Article 307 Overview

• The class focuses on Article 307, which discusses "documentos habilitantes" (enabling documents). The instructor prompts students to share their understanding of the topic.

Definition and Importance

• The article states that if a deed's grantor is a representative, the notary must require original documentation proving this representation.

• Enabling documents are essential in notarial practice; they legitimize actions taken on behalf of another person.

Clarifying Concepts

• The term "documento habilitante" refers to any document that allows or legitimizes an action. It is crucial for justifying actions taken by representatives.

• Acting on behalf of another is considered an exception rather than the norm in legal contexts. This distinction emphasizes personal accountability in transactions.

Distinguishing Between Mandate and Representation

Key Differences Explained

• The instructor clarifies that while both mandate and representation involve acting for another party, they are distinct concepts within legal frameworks.

Understanding Representation in Notarial Practice

Types of Representation

• The new civil code clarifies the concept of representation, which is essential for notarial practice. It emphasizes that representation involves acting on behalf of another person through a contract.

• There are different types of representation:

• Conventional Representation: When one person authorizes another to act on their behalf, often originating from a mandate.

• Legal Representation: Occurs when someone acts for another due to legal provisions, such as parental responsibility.

• Organic Representation: Pertains to legal entities needing individuals to act on their behalf since they do not exist physically.

Importance in Notarial Functions

• Understanding these representations is crucial for notaries, particularly regarding the legitimacy and qualification of documents presented during transactions.

• Notaries must ensure that individuals presenting documents have proper authority—whether through voluntary, legal, or organic representation—to avoid issues with legitimacy.

Handling Powers of Attorney

• A key requirement for notaries is verifying original documents. If someone presents a power of attorney (apoderamiento), the notary must see the original document to validate its authenticity.

• Revocation of powers can occur if the principal takes back control over the power granted. This process requires handling original documentation carefully.

Document Management Practices

• Notaries should always work with original documents. For general powers, originals should be returned to clients; special powers need to be retained and added to official records.

• The historical significance of maintaining original documents cannot be overstated; it ensures clarity and legality in transactions throughout time.

Evolution of Legal Requirements

• The current article replaces Article 1003 from previous civil codes, which underwent multiple reforms due to its complexity and operational challenges faced by notaries historically.

Legal Representation and Documentation Requirements

Overview of Notarial Responsibilities

• The notary is required to include copies of all relevant documentation that must be returned after a legal act, except in specific cases where prior representation has been established.

• If the notary has previously worked with a society and knows its representative, they are exempt from providing copies but must still document how the society operates under their authority.

• Any documentation that does not conclude with the act must be mentioned in the deed, along with copies, unless it has already been recorded in another protocol by the same notary.

Importance of Original Documents

• The original documents must always be available for review; this ensures transparency and accountability regarding powers granted or revoked.

• It is crucial for anyone reviewing the deed to find references to supporting documents easily, ensuring clarity on who acted based on which power of attorney.

Legal Representation and Required Documentation

• When dealing with legal representation, such as a parent acting on behalf of a child, necessary documents like birth certificates and judicial authorizations must be provided and attached.

• For corporate entities like limited liability companies (SRLs), it’s essential to verify that all powers granted align with their governing statutes before proceeding with any acts.

Examination of Corporate Documents

• The notary should thoroughly examine corporate documents to ensure that individuals have the necessary authority to perform actions such as selling property.

• In cases where an SRL's manager needs authorization for significant decisions (like real estate transactions), it's vital to check if additional approvals from other partners are required according to their bylaws.

Designation Procedures in Corporations

• The designation of managers typically occurs through an act registered alongside the company’s founding contract; changes in management require updated designations documented properly.

Understanding Legal Structures and Requirements

Overview of Legal Entities

• Discussion begins on the need for specific documentation when forming a civil association, highlighting that each legal entity requires unique considerations.

• Emphasis on the importance of verifying whether a manager has the necessary powers as stipulated in their contract or amendments, particularly in limited liability companies (SRL).

• For corporations (sociedades anónimas), it is crucial to review the statutes and assembly minutes to confirm appointments of directors and other key positions.

Documentation Requirements

• The necessity of obtaining various documents such as assembly minutes that elect directors and those that distribute roles within the board is discussed.

• Clarification on governance structures: assemblies are decision-making bodies while boards execute decisions; presidents represent but do not have decisive authority like managers in SRLs.

Special Considerations for Associations

• Caution is advised regarding associations, which often have special requirements for property transactions, necessitating additional documentation.

• Required documents include assembly minutes electing the governing council and resolutions authorizing property sales, especially if mandated by statutes.

Changes in Legal Framework

• Introduction of reforms under new codes affecting irregular societies; these entities now have clearer regulations compared to previous frameworks.

• Irregular societies are redefined as "simple societies," allowing them to hold registrable assets without needing individual partners' names for ownership.

Registration Process for Simple Societies

• New regulations state that simple societies must prove their existence and representative powers through public deeds or authenticated private instruments to register properties.

Understanding Legal Documentation

The Role of Enabling and Legitimizing Documents

• Discussion on the importance of enabling documents that allow partners to act on behalf of one another, highlighting their indirect rights.

• Explanation of legitimizing documents, which prove ownership or rights, such as original testimonies required by law for property sales.

• Clarification that certain documents, like a declaration of heirs, should be included in protocols even if they are already documented elsewhere.

Judicial Instruments and Their Importance

• Emphasis on the respect notaries have for public instruments and concerns regarding the reliability of judicial documents when originals are missing.

• Recommendation to include additional documentation in protocols to ensure clarity and completeness for future reference.

Challenges with Judicial Liquidations

• Noting issues with poorly executed judicial liquidations during divorces that often lack proper documentation or registration.

• Suggestion to add relevant documents to protocols despite not being mandatory, ensuring thoroughness in record keeping.

Transitioning Between Articles

• Introduction to Article 308, which replaces previous articles (1007 and 1008), indicating significant changes in legal interpretations.

• Reflection on how prior articles were unclear and led to controversies; personal insights shared from past experiences with these laws.

Historical Context of Notarial Practices

• Commentary on historical practices surrounding testimonies within notarial work, noting shifts towards less formal approaches over time.

• Acknowledgment of varying levels of formality among practitioners today; some still adhere strictly to traditional requirements.

The Significance of Testimonies in Notarial Work

• Discussion about the historical significance of testimonies in notarial acts and their evolving perception within legal contexts.

Notarial Requirements and Legal Implications

The Complexity of Notarial Regulations

• Notarial processes involve numerous requirements and regulations, which can be overwhelming for practitioners.

• Failing to adhere to these regulations may lead to severe consequences, including legal repercussions for notaries when their actions are scrutinized.

Importance of Documentation

• The law mandates that notaries must have access to the original title documents (e.g., deeds) to validate transactions.

• The concept of "publicidad cartular" is introduced, emphasizing the significance of maintaining a record of all relevant documentation in notarial practice.

Role of Publicity in Transactions

• When a property is mortgaged, it is essential for the notary to annotate this in the testimony document, ensuring transparency during future transactions.

• Even with existing registries, certain acts do not require registration certificates; however, proper documentation remains crucial.

Managing Property History

• Notaries must ensure that any changes or encumbrances on a property are documented within the testimony to inform future parties involved in transactions.

• If a property undergoes multiple changes (e.g., sales or mortgages), these should be recorded marginally in testimonies for clarity.

Understanding Second Testimonies

• The discussion transitions into second testimonies and their implications. A new testimony can be requested if previous records are deemed inconvenient or burdensome.

• However, obtaining a clean second testimony does not absolve one from disclosing prior encumbrances or modifications related to the property history.

Legal Consequences and Ethical Considerations

• There’s an ethical dilemma regarding whether requesting a new testimony allows one to bypass showing historical issues associated with the property.

• It raises questions about good faith versus bad faith practices when dealing with real estate transactions and how they affect ownership claims.

Conclusion on Notarial Practices

• Ultimately, while it may seem feasible to obtain a clean slate through new testimonies, due diligence remains critical as past actions will eventually surface through official channels like registries.

Understanding the Role of Notarial Documents

The Concept of Escritura Matriz

• The escritura matriz is a foundational document maintained by the notary for two years before being archived. It serves as proof of ownership.

Importance of Testimonios

• Testimonios are derived from the escritura matriz and are essential for individuals to prove ownership in legal matters, as they provide necessary documentation.

Issuance of Second Testimonios

• The discussion introduces challenges related to issuing second testimonios, emphasizing caution in this process due to potential complications.

Article 308 Overview

• Article 308 mandates that notaries must provide copies or testimonios upon request, ensuring these documents are permanent and indelible according to local regulations.

Conditions for New Copies

• If a new copy is requested, it must be provided unless there are pending obligations noted in the original escritura; in such cases, additional verification is required.

Clarifying Notarial Procedures

Notarial Act Consequences

• A notarial act results in an escritura that remains with the notary for two years before being archived permanently, highlighting its significance in legal processes.

Distinction Between Copy and Testimonio

• While both terms may seem interchangeable, "testimonio" refers specifically to a unique document that certifies ownership compared to multiple copies which can exist.

Provincial Regulations on Testimonios

• National law requires issuance of testimonios but allows provinces discretion on their format and permanence requirements.

Legal Implications of Testimonios

Publicity Cartular Explained

• Testimonios carry "publicity cartular," meaning they should include annotations regarding property burdens and obligations relevant to third parties interacting with the property.

Current Legal Requirements

• Modern registral laws require notaries to have access to testimonios during transactions since they may contain crucial annotations like mortgages or family asset designations.

Evolving Practices Around Second Testimonios

Changes from Civil Code

• The civil code has evolved from requiring copies upon request to mandating testimonios be issued universally, reflecting changes in notarial practices over time.

Understanding Buyer-Seller Dynamics

Understanding the Legal Implications of Notarial Practices

The Role of Simple Copies in Notarial Practice

• A simple copy serves as a record for the seller, providing proof of the sale but does not fulfill any legal obligations.

• Under the new civil code, there is an obligation to provide testimony to both parties involved in a transaction.

Obligations and Testimonies

• The previous law stated that a second testimony should not be issued if there were obligations pending; this has changed under the new article.

• The discussion revolves around whether a second testimony can be issued when obligations are present, emphasizing that all deeds typically contain such obligations.

Judicial Considerations and Historical Context

• Historically, it was debated whether a second testimony could be granted without judicial authorization when obligations were pending.

• Many cases have arisen regarding the issuance of second testimonies, highlighting a lack of understanding about these legal nuances.

Changes in Legal Requirements

• New regulations clarify that if no obligation is pending, notaries must issue a second testimony upon request.

• If one party allows for a second testimony or shows cancellation through public instruments, it simplifies the process significantly.

Final Clarifications on Testimony Issuance

• The article now requires that if there is an obligation pending, authorization from the other party must be obtained before issuing a second testimony.

Discussion on Second Testimony in Notarial Practice

Requirements for Second Testimony

• The discussion begins with the need to cite a second testimony when requested, particularly in cases involving property sales where the buyer claims all payments are settled.

• It is emphasized that notaries must provide a certificate of registration to confirm that the property has not been sold previously before issuing a second testimony.

Importance of Publicity and Registration

• The concept of "publicity cartular" is introduced, highlighting the obligation of notaries to record property sales in testimonies to inform third parties about ownership changes.

• Concerns are raised regarding potential fraud if proper checks are not conducted, especially when dealing with untrustworthy individuals or real estate agents.

Legal Obligations and Precautions

• Notaries are required to demand proof of legitimacy from individuals requesting a second testimony, ensuring they have the right to do so.

• Previously, it was necessary for individuals to justify their request for a second testimony due to loss or destruction; however, this requirement has changed over time.

Handling Powers of Attorney

• Caution is advised when dealing with powers of attorney. Notaries should only issue second testimonies directly to the principal party involved in the transaction.

• There is an emphasis on understanding how revocation of power can complicate requests for second testimonies and lead to legal disputes.

Judicial Precedents and Practical Implications

• A case example illustrates how disputes over powers of attorney can escalate into court cases, emphasizing the importance of careful documentation by notaries.

• The judiciary ruled that even if a power had been revoked, a second testimony could still be issued with appropriate annotations by the notary.

Risks Associated with Banking Practices

• Discussion includes issues arising from banks retaining titles as collateral during mortgage processes, which complicates requests for second testimonies.

• If a person seeks a second testimony while their title is held by a bank as security, it raises concerns about potential fraudulent activities.

Regulatory Framework

Understanding the Implications of Protocol Loss in Notarial Law

The Role of Testimony in Protocol Reconstruction

• The new code omits Article 101 from the civil code, which previously stated that reliable testimony could be used to reconstruct a protocol in case of its destruction or loss.

• Although the new code does not explicitly mention this, it is assumed that testimony can still play a role in reconstructing protocols if they are lost, leaving the decision to the judge.

• The registral law indicates that registry entries will serve as evidence when no testimony is available, highlighting a shift in reliance on documentation.

Discussion on Legal Articles and Their Complexity

• The speaker suggests skipping detailed discussions on Article 309 for future classes due to its complexity and potential confusion among students.

• Acknowledgment of student questions regarding understanding; emphasizes the importance of clarity given the intricate nature of notarial law.

Recommended Resources for Further Study

• Students are encouraged to refer to any book on notarial law for additional information; specific recommendations include works by Mario Cini and others.

• The speaker prefers an article-by-article approach for teaching, allowing discussion beyond what's written and providing broader insights into notarial practices.

Legislative Framework and Updates

• After covering civil code articles related to public deeds, there will be a focus on organic laws governing notarial actions, despite some outdated content.

• Mentioned resources include commentary on procedural codes influenced by changes in civil codes; these materials provide context but may require careful navigation due to their complexity.

Clarification on Material Distribution

• There was an issue with distributing recommended reading materials; students are reminded that various texts exist for consultation regarding current topics discussed in class.