Escribanía - 10/05 - Parte 1

Introduction and Attendance

Opening Remarks

• The session begins with greetings, establishing a friendly atmosphere.

• The instructor mentions that data from the last recorded class is being received.

Attendance Check

• The instructor expresses punctuality concerns and initiates an attendance check to engage students.

• Students are called out for attendance, confirming their presence one by one.

Overview of the Colegio de Escribanos

Role and Function

• The Colegio de Escribanos in Santa Fe is introduced as the body responsible for the professional representation of notaries and has significant regulatory authority delegated by the government.

• Key articles (35 & 43) from relevant legislation outline the governance and disciplinary roles of both the Colegio de Escribanos and the Tribunal de Superintendencia.

Disciplinary Actions

• The Tribunal's involvement in disciplinary matters is limited; most interpretations fall under the jurisdiction of the Colegio de Escribanos.

• Emphasis on inspections conducted periodically to ensure notaries adhere to regulations, highlighting accountability within their practices.

Functions of the Colegio

Legalization and Oversight

• The institution also handles signature legalization, showcasing its multifaceted role in maintaining legal standards among notaries.

• Article 49 outlines specific functions of the Colegio, emphasizing its importance in regulating notarial practices effectively.

Historical Context

Council Structure and Functions

Overview of the Superior Council

• The Superior Council is composed of two presidents, two vice-presidents, two treasurers, and two vocal members, forming the highest governing body of the College of Notaries in the province.

• Although there is a central governing body, each council operates independently within its jurisdiction while still adhering to overarching regulations.

Access to Notarial Function

• The course discusses access to notarial functions and highlights potential confusions between academic qualifications and professional registration.

• Historically, notaries were assigned by existing notaries without a formal registry; this system aimed to clarify roles but led to misunderstandings about qualifications.

Registration Requirements for Notaries

Clarifying Notary Registration

• A university degree alone does not grant permission to practice as a notary; official registration is mandatory for legal practice.

• The term "notary" often causes confusion among the public; it’s essential to distinguish between registered notaries and those who are merely graduates.

Historical Context of Registration

• Previously, a system allowed one notary to write for another under supervision. This was regulated but had limitations regarding succession.

• It was common for children of notaries to follow in their parents' footsteps; however, this did not imply that all registries were inherited.

Changes in Notarial Law

Evolution of Registration Laws

• Changes in law allowed newly qualified individuals after nine years of apprenticeship to request their own registry.

• Initial attempts at liberalizing access led to chaos due to insufficient oversight over new entrants into the profession.

Issues with Overcrowding Registries

• The influx of new registrants created challenges in maintaining quality control within the profession.

• Similarities drawn between judicial appointments highlight the need for rigorous selection processes in public service roles like notarization.

Current System Challenges

Ineffectiveness of Previous Systems

• Past systems failed due to lack of regulation leading to an overwhelming number of registries being created without adequate demand or oversight.

• The current approach has reverted back towards more structured competitions for registry positions due to previous failures observed with unregulated growth.

Conclusion on Registry Management

Economic Ignorance and Legal Competitions

Discussion on Economic Issues and Legal Competitions

• The speaker emphasizes the severe ignorance displayed by certain individuals regarding economic matters, indicating a broader concern about their understanding of legal processes.

• An overview of the competition structure is provided, which includes a written exam that consists of drafting a deed, title study, and notarial consultation.

• The tribunal for the competition comprises various officials including a government minister, who may delegate responsibilities to professionals such as notaries.

• Candidates must pass an initial written exam with a minimum score (62 points), after which they can proceed to an oral examination covering similar material.

• The curriculum for the exams was developed collaboratively and includes aspects of notarial law as well as private law.

Evaluation Process in Legal Competitions

• After passing both written and oral exams, candidates are evaluated based on their previous work experience and academic performance.

• Interviews are conducted to assess candidates further; however, the speaker notes that they try to maintain academic integrity during this process unless significant red flags arise.

• Concerns are raised about political influences affecting judicial appointments, contrasting with the more serious approach taken in notary competitions.

• A merit order is established based on cumulative scores from all evaluation stages, determining who gains access to positions within registries.

Changes in Registration Systems

• A new system called "adjunction" has been introduced to facilitate the inheritance of registries among notaries under specific conditions.

Legalization Processes and Their Implications

Overview of Academic and Honorary Standards

• The discussion begins with the importance of maintaining academic standards and honorability in legal practices, emphasizing that trust plays a crucial role in these processes.

• The Colegio de Escribanos (Notaries' College) is responsible for registration, discipline, and control within the legal framework, ensuring compliance with protocols.

Legalization Procedures

• Introduction to the concept of "legalization of second degree," which involves validating documents through various governmental layers.

• Legal fictions are discussed; for instance, a notary's authority is recognized within their province but may require validation outside it.

First and Second Degree Legalizations

• First-degree legalization is performed by the Colegio de Escribanos or relevant judicial bodies to validate signatures for domestic use.

• For international use, second-degree legalization becomes necessary, involving multiple governmental verifications.

Historical Context of Legalization

• A historical perspective on document verification highlights the cumbersome process prior to modern systems; it required multiple validations from different authorities.

• The bureaucratic challenges faced during this process are acknowledged, particularly concerning child trafficking concerns that necessitate stringent documentation controls.

Modern Solutions: Apostille System

• The introduction of an apostille system aimed to simplify international document validation by reducing bureaucratic steps.

• This system allows documents validated by local authorities to be recognized internationally without further consular authentication for signatory countries.

Legalization Process and Responsibilities of Notaries

Overview of Legalization Services

• The Ministry facilitates the legalization process, allowing notaries to affix apostilles to various documents, including judicial sentences and administrative instruments.

• The Colegio de Escribanos (Notary College) plays a crucial role in this legalization process after initial steps are completed at the Cámara.

Appointment and Responsibilities of Notaries

• The appointment of notaries is executed by the Executive Power following a competitive selection process as outlined in Article 17.

• It is emphasized that the property registry belongs to the state, with notaries merely holding regulatory authority over their respective registries.

Types of Responsibilities for Notaries

• Notaries have four main types of responsibilities: civil, penal, disciplinary, and professional. Civil responsibility pertains to damages caused by non-compliance with legal provisions.

• Requirements for becoming a notary include being an Argentine citizen, having relevant experience, and passing background checks conducted through civil courts.

Compliance Checks Before Registration

• A thorough verification process occurs before registration; it includes checking criminal records and obtaining good conduct certificates from various jurisdictions.

• The Colegio de Escribanos oversees compliance during this verification phase to ensure all requirements are met prior to matriculation.

Financial Guarantees and Professional Conduct

• Prospective notaries must provide a financial guarantee (bond), ensuring they will perform their duties responsibly; this bond can be personal or real.

• Article 13 outlines that notaries are civilly liable for damages resulting from their actions or failures in duty as per established laws.

Summary of Legal Liabilities

• Articles 28 through 32 detail various liabilities: civil liability arises from law violations; administrative liability relates to tax law breaches; professional liability concerns adherence to ethical standards.

Disciplinary Actions and Legal Framework

Overview of Suspension and Disciplinary Procedures

• The process for suspending an individual involves the Superior Council determining if a 30-day suspension is adequate or if a longer term, including indefinite suspension or dismissal, is necessary.

• If the suspension exceeds a certain duration, the case must be escalated to the Superintendency Tribunal, which ultimately decides on the appropriate sanction.

Practical Aspects of Surety Bonds

• A discussion arises regarding the practical implications of surety bonds; they are often perceived as excessively high and poorly regulated in practice.

• The speaker expresses concerns about how these bonds are managed, noting that once established, they tend to be overlooked until renewal becomes necessary.

Issues with Bond Management

• There is a lack of rigorous oversight after a bond is issued; it often becomes more procedural than substantive over time.

• The speaker reflects on their own experience with bond renewals being neglected after initial compliance.

Importance of Theory in Legal Education

• Transitioning to Unit Two, the speaker emphasizes that while practical application is crucial, understanding theoretical foundations remains essential for comprehending legal practices.

• The necessity of theory in notarial law education is highlighted; without it, students may struggle to grasp practical applications effectively.

Historical Context and Educational Evolution

• The speaker references Mario C. as a transformative figure in legal education who introduced Italian theories into Argentine law studies.

• They lament past educational approaches that were overly complex and disconnected from practical understanding.

Conceptual Framework for Legal Studies

• An introduction to general business law concepts aims to unify various branches of law under common principles rather than treating them as isolated subjects.

• Emphasis on establishing foundational knowledge applicable across all areas of law—civil, criminal, administrative—is presented as vital for comprehensive legal education.

Distinction Between Types of Legal Phenomena

Understanding Legal Phenomena and Their Perception

The Nature of Legal Situations

• The speaker discusses various legal concepts such as ownership, obligation, public faith, res judicata, labor relations, and state punitive claims. These concepts represent a spectrum of law that often goes unperceived in daily life.

• Two types of phenomena are identified: static legal situations that are imperceptible (e.g., creditor-debtor relationships) and dynamic human behaviors or natural events that can be perceived.

• Static legal situations are characterized by their invisibility; for instance, one may not perceive the relationship between a person and their property unless observing behavior over time.

• The concept of power dynamics is introduced; while ownership or tenancy may be inferred from actions, these relationships remain fundamentally imperceptible yet exist within the legal framework.

Dynamic Human Behaviors

• In contrast to static situations, dynamic phenomena like transactions (e.g., sales or loans) are observable. These actions lead to tangible changes in legal status or obligations.

• Examples include perceiving the act of transferring ownership through sale or recognizing a loan agreement where one party becomes obligated to repay another.

Origins of Obligations

• The speaker reflects on traditional views regarding the origins of obligations—historically attributed to crimes (delicts), contracts, quasi-delicts, and laws.

• It is emphasized that all obligations stem from human behavior or natural occurrences rather than solely from legislative frameworks.

Legal Recognition and Its Implications

• The importance of understanding how rights and responsibilities arise from birth events is highlighted. For example, parental responsibilities emerge legally but also inherently from the act of having a child.

• Notarial acts play a crucial role in establishing public faith; similarly, judicial decisions create res judicata effects which solidify certain legal standings.

Property Rights and Usucapion

• A discussion on property rights reveals that long-term possession can lead to formal recognition as an owner under usucapion laws—this process intertwines with both human behavior and statutory recognition.

• Questions about why individuals gain property rights after prolonged possession highlight the interplay between law and social practices surrounding ownership.

Relevance in Legal Framework

• The speaker concludes by noting how behaviors relevant to law can be viewed positively (as lawful actions leading to rights/obligations) or negatively (as criminal acts). This duality shapes how laws evolve based on societal norms.

Understanding Legal Behavior and Its Regulation

The Concept of Buying and Selling in Law

• The speaker discusses the historical perspective on buying and selling, noting that early recognition of these actions led to their regulation by law.

• Emphasizes that ownership arises from behaviors such as purchasing or receiving gifts, highlighting the connection between human behavior and legal situations.

• Points out that for law to consider a behavior relevant, it must be externalized; internal thoughts are not sufficient for legal acknowledgment.

Legal Framework and Human Behavior

• Mentions how Italian theories on business transactions have influenced the new civil code, which incorporates various human behaviors into its articles.

• Discusses Article 90 of the national constitution, asserting that all acts must be expressed externally to be recognized legally.

• Introduces Article 2060 of the new civil code, defining voluntary acts as those executed with discernment and intention manifested through external actions.

Formality of Acts in Law

• Clarifies a common misconception in doctrine regarding formal vs. informal acts; asserts all acts are formal if they are not externalized.

• Reiterates that behaviors must be recognized by law to hold relevance; this includes both verbal declarations and written communications.

Types of Declarations and Omissions

• Explains how declarations can manifest through various means (oral, written, gestures), emphasizing their role in influencing others' will.

• Discusses operations where individuals modify their environment through actions leading to consequences like damage or injury requiring indemnification.

Legal Obligations Regarding Silence

• Highlights the concept of omissions—failing to act when required can lead to legal repercussions (e.g., abandonment).

• References Article 161 from Santa Fe's Code of Procedures about obligations during interrogations; silence can imply consent under certain conditions.

Manifestation of Will in Legal Context

• Notes how silence is treated under Article 263; it is not considered a manifestation unless there’s a duty to respond based on laws or relationships.

• Concludes with an overview of how modern codes recognize various forms of expressing intent within legal frameworks.

Understanding Legal Behavior and Its Classification

Classification of Behaviors

• The behaviors can be classified into categories such as lawful or unlawful, valid or invalid, effective or ineffective. The focus is on the influence of law on these classifications.

Legal Facts and Their Implications

• Legal facts are defined in Article 257 as events that produce the birth, modification, or extinction of legal relationships according to legal order.

• These legal facts can arise from natural phenomena or human actions where the law evaluates not just consciousness and will but also the external world changes caused by behavior.

Distinction Between Legal Acts

• Legal acts involve conscious and voluntary actions valued by law. They include declarations, operations, or omissions.

• Simple legal acts (Article 258) are voluntary actions not prohibited by law resulting in some acquisition, modification, or extinction of legal situations.

Types of Legal Acts

• The code classifies acts into legal facts, simple lawful acts, and legal acts. A legal act is a voluntary lawful action aimed at acquiring or modifying relationships (Article 259).

Nature of Relevant Actions

• Relevant actions for law must be externalized; if they remain unexpressed, they cannot be considered by the law. This highlights the dynamic nature of behaviors which are often fleeting.

Documentation in Law

• Due to the transient nature of behaviors (e.g., buying/selling), law adopts legislative policies to ensure these moments can be represented later through documentation.

• Documents serve as representations of real-world events; they encapsulate occurrences that need to be recorded for future reference.

Importance of Certainty in Documentation

• For significant actions deemed important by law, mere representation may not suffice; certainty is required to validate these documents.

Public Faith in Legal Context

• Public faith refers to belief imposed by legislation regarding the material existence of behaviors intended for protection and authenticity verification within documents.

Origin of Public Faith

Understanding Notarial Acts and Their Legal Implications

The Concept of Generación Espontánea

• Generación espontánea refers to the public faith granted by the state through notarial acts, which are essential for establishing legal validity.

• It is crucial to differentiate between the actions taken by parties before a notary and the notarial act itself that provides public faith to those actions.

Importance of Understanding Legal Development

• A clear understanding of these concepts is vital for grasping broader legal principles, aiding in overall comprehension of law.

• The speaker emphasizes that viewing situations from a legal perspective simplifies understanding contracts and obligations.

Educational Anecdote on Law vs. Other Disciplines

• An anecdote illustrates how students from different disciplines (like medicine or engineering) can discuss their fields extensively, while law students often struggle due to a lack of foundational knowledge.

• This highlights the necessity for law students to have a solid grounding in general theory before delving into specific areas.

Relationship Between Different Areas of Law

• Various branches of law emerge from specific acts: commercial law arises from commerce, civil law from daily interactions, and administrative law from administrative acts.

• Notarial law specifically develops from notarial acts, emphasizing its unique foundation within the legal system.

The Role of Documentation in Notarial Law

• The document produced by a notary is distinct; it results from an act but should be studied separately as it encapsulates the essence of that act.