Escribanía - 17/05 - Parte 1

Name: Escribanía - 17/05 - Parte 1
Uploaded: 2024-08-07T15:48:11.000Z
Duration: 13 h 40 min 18 s

Understanding Legal Situations and Events

Types of Phenomena in Law

The discussion begins with the distinction between two types of phenomena in law: situations and events. Situations are static relationships concerning people, things, or human/natural occurrences, while events are dynamic and perceptible.

It is emphasized that legal situations arise from human actions or natural events. Every legal situation has a cause rooted in either an event or a human behavior.

Legal Consequences of Actions

The speaker explains that all legal situations stem from specific behaviors or occurrences. For example, the relationship between a parent and child originates from birth, which is a significant event recognized by law.

The importance of understanding where rights and duties originate is highlighted; they emerge from laws that recognize these relationships based on corresponding behaviors.

Examples of Legal Situations

An example provided is ownership: one becomes the owner of an item through the act of purchasing it. This illustrates how every legal right has an associated action that gives rise to it.

Usucapion (acquisition by possession over time) is discussed as another example where both positive actions (possessing for 20 years) and omissions (failure to contest possession) lead to legal recognition of ownership.

Expression of Will in Law

The necessity for behaviors to be expressed externally for them to have legal significance is stressed. Thoughts alone do not constitute actionable behavior under the law; there must be observable actions.

All acts are formalized in some way; even informal acts carry implications within the legal framework. The speaker notes that every human action has a form through which it manifests legally.

Categories of Human Actions

Different categories of actions are outlined: declarations intended to influence others' will, operations like building or planting which create rights, and omissions which may also have legal consequences if there was an obligation involved.

Understanding Legal Manifestations and Behaviors

The Concept of Silence in Legal Context

The new code discusses "manifestation of will," indicating that declarations can be made orally, in writing, through unequivocal signs, or by executing a material fact. Silence is not considered a manifestation of will unless it opposes acts or inquiries.

Silence may only be deemed a manifestation of will when there is a legal obligation to respond, based on the law, the parties' intentions, customary practices, or prior statements.

Classification of Legal Acts

Legal behaviors are evaluated by law and assigned consequences; these include declarations, operations, and omissions. Each behavior gives rise to specific legal situations.

Behaviors can be perceived while situations cannot; this distinction is crucial for understanding how actions lead to legal outcomes.

Acts are classified as lawful or unlawful based on whether they align with legal favorability. They can also be valid/invalid or effective/ineffective.

Distinction Between Juridical Facts and Juridical Acts

Juridical facts occur without intending to influence another's will (e.g., natural phenomena), defined under Article 258 as simple lawful acts leading to changes in rights or situations.

Juridical acts involve an intention to affect another's will (Article 259), aiming at acquiring, modifying, or extinguishing legal relationships.

Understanding Public Faith in Notarial Acts

The law recognizes that certain behaviors are fleeting; thus, documents serve as proof of past actions. However, some acts require more than mere documentation for validation.

Public faith is established by legislation regarding the authenticity and truthfulness of documents. It arises from formal acts like notarization which confer credibility upon documents.

Role of Notarial Acts

Public faith does not arise spontaneously; it requires an act (e.g., notarization). This act creates a situation where the document gains public trust due to its formal recognition by law.

Understanding Notarial Acts and Public Faith

The Nature of Notarial Acts

The discussion begins with the importance of distinguishing between notarial acts and the documents they produce, emphasizing that traditional notarial law often conflates the two.

It is crucial to differentiate between actions (acts) and documents, as discussions around nullity pertain to the document itself rather than the act that creates legal situations.

A notarial act serves as a source of public faith, creating a document through the work of a notary, which has significant legal implications.

Key Effects of Notarial Acts

One major effect of a notarial act is its executivity; it can be enforced in court as per Article 442 of the Civil Procedure Code.

The article specifies conditions under which enforcement can occur, particularly concerning obligations to pay liquid amounts or provide specific goods.

Understanding Public Instruments

The term "public instrument" is highlighted over "public writing," indicating that various forms like notarized signatures also qualify for execution.

This distinction emphasizes that public instruments carry enforceability beyond just written contracts.

Legal Certainty and Public Faith

Public faith refers to legally imposed belief regarding certain objects such as public documents and currency, ensuring their authenticity.

This concept extends to various official acts including administrative decisions and judicial sentences, all contributing to legal certainty.

Distinctions in Public Faith

Different types of public acts yield different results; however, they all share a common foundation in being legally recognized beliefs.

While there are distinctions among administrative acts, judicial acts, and notarial acts regarding their outcomes, they all stem from the same principle of public faith.

Conclusion on Notarial Functions

The speaker argues against views suggesting differing types of public faith based on content; instead asserting uniformity in its application across various contexts.

Understanding Real Estate Transactions and Legal Implications

The Role of Notarial Acts in Real Estate Sales

The law mandates that real estate transactions must be formalized through a notarial act, which provides legal recognition and effects to the sale between parties.

Historical context reveals that there was a surge in the use of informal contracts (boletos) for property sales, leading to numerous fraudulent activities during earlier times.

Legislative Changes and Their Impact

Law 14005 required the registration of boletos to ensure their enforceability; however, compliance was low among sellers.

The introduction of pre-horizontal property laws mandated prior registration before selling properties under horizontal ownership, emphasizing the importance of formal documentation.

Consequences of Non-compliance

Failure to register a boleto could result in the seller losing their right to collect payments, highlighting the necessity for immediate formalization through escritura (deed).

A judge's ruling indicated that if a seller refuses to sign necessary documents, they may be compelled by court order, reflecting judicial support for enforcing contractual obligations.

Legal Nullity and Its Effects

When real estate transactions lack proper form (i.e., public deed), they are deemed null. This raises concerns about the validity of informal agreements like boletos.

Despite being classified as null acts, these transactions can still generate negative obligations such as indemnification claims or partial validity under certain conditions.

Conversion of Null Acts into Valid Transactions

The concept arises that an act deemed null can potentially convert into another valid act if it meets essential requirements and aligns with parties' intentions.

Understanding Promises in Real Estate Transactions

The Nature of Promissory Notes

Discussion on the nature of promissory notes, emphasizing that they are essentially promises. The speaker highlights the implications of these promises in real estate transactions.

Preliminary Contracts and Their Requirements

Explanation of preliminary contracts, which must include essential elements that identify the future definitive contract. It is noted that these promises have a validity period of one year.

Protection Mechanisms for Buyers

Emphasis on protecting buyers through legal frameworks, particularly in property transactions. The speaker mentions challenges faced in horizontal property ownership and the need for secure agreements.

Legal Innovations: Fiduciary Trusts

Introduction to fiduciary trusts as a legal innovation aimed at enhancing security in construction projects. The speaker references a notary from Rosario who advocated for this approach.

Historical Context and Regulatory Evolution

Overview of how many legal solutions were historically unregulated but emerged from notarial practices to protect clients effectively. This includes various business models like country clubs and their evolution over time.

The Role of Boleto in Real Estate Transactions

Buyer-Seller Dynamics

A hypothetical dialogue between buyer and seller illustrates the complexities involved when immediate transfer of ownership is considered, highlighting tax implications and financial responsibilities.

Tax Evasion Strategies

Discussion on strategies employed by sellers to minimize tax liabilities through delayed formalities such as using promissory notes instead of immediate deeds, thus avoiding higher taxes.

Risks Associated with Informal Agreements

Insights into potential risks when relying on informal agreements (boletos), including issues related to documentation and traceability during transfers between parties.

Implications for Future Transactions

Commentary on how informal practices can lead to complications regarding tax obligations and record keeping, stressing the importance of maintaining proper documentation throughout transactions.

Current Trends in Property Transactions

Speeding Up Processes

Observations about how modern practices have accelerated transaction processes compared to previous lengthy procedures, reflecting changes due to inflation and market demands.

Legal Framework Adaptation

Understanding Public and Private Instruments

The Role of Notary Acts

The notary act provides public faith and has significant consequences, including the material result being a document that collaborates with the parties' actions to achieve substantive effects.

Distinction Between Public and Private Instruments

Introduction to public and private instruments as outlined in the new code, specifically in Book One, General Part, Title Four concerning legal facts and acts.

Public instruments are defined broadly, with public deeds being a subset. The distinction between public instruments and private documents is emphasized.

Legal Framework for Instruments

Article 287 discusses the freedom of form for legal acts unless specified otherwise by law. Article 285 states that if an act does not meet the required form, it is not concluded until the prescribed instrument is provided.

There are formal acts that require specific forms under penalty of nullity; examples include donations which must adhere to these formalities.

Requirements for Specific Contracts

Certain contracts must be executed publicly: those involving acquisition or modification of real rights over immovable property, judicial auction contracts, and contracts related to disputed properties.

Recent changes now require donations of real estate and certain movable assets (like vehicles) to be executed through public writing.

Characteristics of Private Instruments

Legal acts can occur via either public or private instruments. Private instruments may be signed or unsigned; unsigned ones are termed "unsigned particular instruments."

This category includes all written but unsigned documents such as printed materials or audiovisual records.

Classification of Private Instruments

Private instruments are categorized into properly private instruments or non-signed particular instruments. This classification helps clarify their legal standing compared to public documents.

Critique of Previous Legal Framework

The exposition on motives highlights criticisms from doctrine regarding previous articles defining public documents as overly broad without clear distinctions among types.

It emphasizes that official documents have legal value when they involve actions taken by officials (e.g., court rulings), differentiating them from other types of public documentation.

Understanding Public Instruments in Civil Law

The Role of Public Officials in Marriage Registrations

Discussion on the involvement of public officials, specifically civil registrars, in marriage documentation and how these acts are formalized as public instruments under civil law.

Regulation of Public Instruments

Explanation of the lack of comprehensive regulation for various public instruments, highlighting that while some are recognized, others remain unregulated until a new administrative code is established.

Definition and Validity Requirements

Introduction to Article 290 which outlines the requirements for a valid public instrument, emphasizing the necessity of signatures from both the official and involved parties for validity.

Characteristics of Public Deeds

Clarification that an official instrument lacking signatures from involved parties is considered invalid. This underscores the importance of proper execution in legal documents.

Types of Public Instruments Recognized

Overview that includes definitions and classifications such as public deeds and their copies or testimonies, noting that terminology may vary but essentially refers to similar concepts within legal frameworks.

Distinction Between Different Legal Documents

Discussion on historical debates regarding whether copies or testimonies should be classified differently; current understanding allows interchangeable use within legal contexts.

Inclusion of New Legal Instruments

Mention that recent changes in civil law now recognize additional types of documents like judicial records and civil registry acts as valid public instruments.

Functionality Beyond Traditional Roles

Insight into how notaries can extend their roles beyond traditional document preparation to include acting as experts in various contracts, thus broadening their professional scope.

Importance of Clarity in Notarial Acts

Emphasis on the need for notaries to educate clients about the implications and responsibilities associated with signing different types of agreements to avoid confusion over legal coverage.

Compliance with Legal Standards

Highlighting that notarial acts must adhere to numerous regulations ensuring they meet standards necessary for them to be recognized as having "public faith."

Transition from Old Regulations

Summary indicating a shift away from outdated enumerations found in previous articles towards a more streamlined approach focusing on essential elements required for public instruments today.

Recommendations for Future Notaries

Advice directed at aspiring notaries regarding awareness and education about their roles, particularly concerning distinguishing between private agreements versus those requiring formal notarization.

Public Instruments and Legal Validity

Overview of Public Instruments

Discussion on the implications of public instruments, emphasizing that they hold no value if authorized by a public official with personal interests.

Introduction of cohabiting partners in legal contexts, highlighting changes in family law to include modern family structures.

Changes in Legal Definitions

Clarification that both spouses and cohabiting partners are now recognized legally, addressing previous exclusions.

Reference to Article 81 and its evolution regarding public officials' involvement in acts where they or their relatives have interests.

Role of Notaries and Legal Responsibility

Examination of notaries' roles when involved in transactions with personal interests; discussion on the separation between different legal entities.

Emphasis on the notary's responsibility to assess potential conflicts of interest before proceeding with an act.

Validity of Acts Involving Personal Interests

Notaries must determine whether an act is valid based on personal interest; examples provided for clarity.

The validity of acts remains until a judicial ruling contradicts it, stressing the importance of civil law principles.

Nulidades (Nullities)

Majority opinion categorizes certain nullities as absolute, while some argue for relative nullities based on specific circumstances.

Discussion about representatives or members within legal entities and how their actions may be deemed valid unless clear conflicting interests arise.

Jurisdictional Defense and Federalism

Jurisdictional Implications

Public instruments issued under this code are recognized across jurisdictions within the Republic, ensuring uniformity.

Historical Context

Mention of constitutional provisions related to jurisdictional defense; historical shifts affecting how public instruments are regulated across provinces.

Practical Challenges

Issues faced by provinces requiring local protocolization for acts executed elsewhere; implications for legal practice highlighted.

Supreme Court Rulings

Legalization and Jurisdiction in Provincial Acts

Validity of Provincial Acts

The speaker emphasizes that the validity of an act from a province is established in the Constitution, making further discussion unnecessary. This article was included due to provincial demands for this requirement.

Registration Requirements

Article 6 of Law 1781 and Article 11 of Law 6435 stipulate that a professional from Santa Fe must oversee the registration of documents, even if they are validly executed elsewhere (e.g., Buenos Aires).

Economic and Professional Defense

The necessity for local professionals to handle registrations serves both jurisdictional defense and economic protection for local professions, ensuring familiarity with regional customs and practices.

Historical Context of Legalization

The historical context behind these regulations reflects past issues where acts were denied based on jurisdictional claims. The ongoing need for jurisdictional defense during registration processes is highlighted.

Distinction Between Certification and Legalization

A clear distinction is made between certification (a different process) and legalization, which confirms that an individual is acting within their official capacity. This legal acknowledgment is crucial when documents cross provincial lines.

Legal Procedures for Document Registration

Historical Challenges in Document Registration

Previously, registering a legal act from one province to another involved cumbersome procedures like judicial exhortations between provinces, emphasizing the complexity before current laws streamlined the process.

Requirements for Effective Instruments

For a document to be effective across provinces or nationally, it must meet specific requirements outlined by law (e.g., signatures from relevant officials), ensuring its acceptance in other jurisdictions.

Efficacy vs. Validity

While an act may be valid if executed correctly within one province, it requires additional steps (legalization of first degree) to ensure efficacy when recognized in another province.

Levels of Legalization

First Degree Legalization

First-degree legalization involves confirming signatures by appropriate authorities so that documents can be recognized effectively across provincial borders.

Second Degree Legalization

If documents are intended for international use, second-degree legalization requires validation by foreign consular authorities to confirm authenticity at multiple levels before being accepted abroad.

Legalization of Foreign Documents

Challenges in Document Validation

The speaker discusses the frustrations surrounding document validation, emphasizing that many processes are cumbersome and often lead to unfair consequences for those who comply with regulations.

There is a mention of individuals exploiting bureaucratic processes, particularly referencing people who profited from navigating Argentine governmental procedures.

Introduction of Apostille Convention

The Apostille Convention was established on October 5, 1961, aiming to simplify the legalization process for foreign documents by introducing specific requirements like watermarks.

Despite its advancements, there are inconsistencies in how different countries implement apostilles, leading to confusion and anxiety regarding their validity.

Legal Framework and Requirements

The discussion shifts towards the legal framework governing foreign documents' validity within Argentina's legal system.

Reference is made to Article 671 of Peirano's commented procedural code concerning public instruments and their validation process.

Judicial Oversight in Document Processing

The speaker highlights the role of judges in ensuring that foreign documents meet local standards before they can be protocolized by notaries.

Judges must verify language translations and ensure compliance with Argentine public order before approving any real estate transactions involving foreign documents.

Simplification Under New Code

A new code has simplified previous requirements but raises questions about how effectively it addresses international private law issues related to property rights.

Article 2667 states that real estate laws are governed by the jurisdiction where the property is located, reinforcing that foreign contracts must be legally recognized if properly documented.

Conclusion on Document Validity

The speaker concludes that while simplifications have been made regarding document processing, there remains a need for careful interpretation of these changes to ensure compliance with national laws.

Legalization and Public Instruments in Argentina

Role of Notaries in Legal Processes

Notaries are now responsible for tasks previously handled by judges, including ensuring compliance with registration fees and public order regulations.

The notary must request certificates if registration deadlines cannot be met, highlighting the importance of timely legal processes.

Validity of Foreign Contracts

Contracts executed abroad to transfer rights within Argentina hold equal validity as local contracts, provided they are formalized through public instruments and legalized.

The legal framework governing the validity or nullity of acts is determined by the laws applicable at the location where these acts were performed.

Legal Formalities and Requirements

When a law mandates specific formal qualities for legal relationships, it is essential to assess whether the actual form meets those requirements.

There is an emphasis on understanding the legalization process; notaries must ensure that foreign public instruments appear legally valid before acceptance.

Challenges with Foreign Instruments

Issues arise when dealing with foreign public documents, particularly from North America, which may lack traditional forms recognized in Argentine law.

It’s crucial to acknowledge that while some countries have different documentation practices, these must still be evaluated against Argentine standards for legality.

Importance of Understanding Legalization

Knowledge about legalization processes is vital for legal professionals as they encounter various international instruments in practice.

Questions regarding clarity and understanding among students indicate a need for further discussion on these topics.

Technical Issues During Class

Connectivity Problems

Technical difficulties were noted during class sessions, affecting student participation and access to materials.

Recording Availability

Concerns were raised about previous classes being uploaded but not easily accessible on platforms like YouTube due to privacy settings or technical issues.

Discussion on Access Issues and Platform Problems

Accessing Content

The speaker discusses the issue of accessing a platform, mentioning that someone is asking about the location of a boy who is expected to arrive on Monday or Tuesday.

There are problems with entering a code for access; the speaker notes that they encountered an "inexistent" error message previously.

The conversation reveals frustrations with platform reliability, indicating that videos may be marked as non-existent due to internal issues.

Internal Problems and Solutions

The speaker reflects on internal problems within their organization, suggesting that they had not realized the extent of these issues until now.

A humorous anecdote about a recent haircut highlights personal challenges amidst professional discussions.

Legal Framework in Real Estate

Property Ownership Concepts

The discussion shifts to legal frameworks regarding real estate, specifically referencing Article 2075 related to property ownership structures.

It is emphasized that in horizontal property regimes, land cannot be commonly owned; instead, it can be parcelled out among owners.

Common Areas vs. Private Ownership

Key distinctions are made between common areas (like roads and recreational spaces) and private ownership within real estate developments.

The topic of expenses associated with property management arises, noting significant legal cases concerning expense collection in Rosario and Buenos Aires.

Challenges in Collecting Expenses

Legal Precedents

Historical context is provided regarding how courts have ruled against enforcing expense payments under certain property regimes.

The complexities surrounding expense collection are discussed, particularly when properties do not fall under traditional horizontal property laws.

Implications for Owners

Owners face challenges when attempting to collect dues through ordinary judicial processes due to lengthy timelines and procedural hurdles.

Pre-existing Real Estate Structures

Rights Under Previous Codes

A focus on pre-existing real estate structures highlights how rights were defined before new codes were enacted.

Privative Property and Condominium Concepts

Overview of Privative Property in Roman Law

Discussion on the concept of "privativa de nuevo dominio románico," referring to individual parcels or units within a property structure, including circulation paths and recreational areas.

Historical context provided regarding private residential complexes, particularly referencing early developments like Venado Tuerto before the establishment of formal codes.

Challenges with Condominium Structures

Explanation of condominium issues, emphasizing that shared ownership often leads to division and disputes over rights between private properties and common areas.

The necessity for indivisibility between individual units and common areas is highlighted as a requirement for real estate developments.

Servitudes in Property Law

Introduction to servitudes by family destination, where property owners can establish rights such as water access across their land.

Example from Venado Tuerto illustrating how servitudes were integrated into property contracts during the subdivision process.

Legal Framework for Usufruct

Transition from discussing servitudes to focusing on usufruct rights, which allow individuals to use another's property while maintaining ownership.

Clarification that current legal frameworks do not adequately address certain types of servitudes previously recognized under older codes.

Registration and Testamentary Usufruct

Examination of Article 2130 concerning usufruct objects, noting its implications for registration processes related to property transfers.

Distinction made between usufruct established through testamentary succession versus intestate succession, indicating limitations in the latter scenario.

Implications for Hereditary Rights

Discussion on technical registration provisions allowing hereditary rights transfer with reserved usufruct; emphasizes the need for testamentary succession in these cases.

Legal Framework of Property Rights and Registrations

Overview of Legal Resolutions and Their Implications

The discussion references a legal resolution from 1985, specifically Resolution No. 3, which addresses the registration of property rights and usage.

It highlights that the registration of possession rights has been discontinued, indicating a shift in how property rights are documented.

The resolution emphasizes that property sessions must pertain to specific assets or portions of hereditary estates rather than vague claims.

The speaker notes that this resolution allows for reservations on succession without necessitating testamentary declarations, suggesting flexibility in estate management.

There is an indication that this topic may be relevant for further discussions among legal professionals regarding succession law.

Discussion on Hypothecary Law Changes

The original code stipulated a 20-year validity period for registered mortgages; however, amendments extended this to 35 years due to evolving credit lines.

Historical practices required explicit cancellation of mortgages even after payment, highlighting complexities in mortgage law enforcement.

A significant debate arose regarding whether pre-reform mortgages should retain their original 20-year term versus adopting the new 35-year standard post-reform.

Arguments were made about protecting acquired rights at the time of mortgage establishment against potential retroactive changes in law.

Variability across provinces complicates understanding registral validity periods; thus, practitioners must be aware of local regulations when analyzing property records.

Insights into Surface Rights Legislation

The concept of surface rights emerged from earlier legislation but saw limited application due to lack of awareness and understanding among stakeholders.

Current laws recognize surface rights concerning forestry and construction projects, indicating a broader scope for land use regulation.

This legislation introduces dual ownership concepts where landowners can separate ownership from development rights through surface agreements.

Construction and Property Rights Overview

Duration of Property Rights

The discussion begins with the duration of property rights, highlighting 50 years for forestations and 70 years for buildings. This indicates a long-term perspective on land use and ownership.

Legal Framework and Implications

Reference is made to legal codes that outline property rights, emphasizing the importance of understanding these regulations as they can significantly impact registration processes.

Cemetery Regulations

The concept of private cemeteries is introduced, noting that there are specific regulations in place. It mentions the need for formal documentation when affecting land for cemetery purposes.

Surface Rights Explained

The speaker explains the concept of surface rights, which allows individuals to build on or utilize land owned by another party. This includes scenarios where existing structures can also be subject to surface rights.

Distinction Between Property Types

A distinction is made between building rights and superficial property rights. Building rights pertain to construction while superficial property refers specifically to ownership over constructed properties.

Registration Challenges and Solutions

Independent Registration Needs

There’s a proposal for independent registration numbers for surface rights, ensuring clarity in ownership records and preventing confusion with original land titles.

Financial Implications of Surface Rights

Surface rights can be encumbered; they may be mortgaged or subjected to liens. This highlights their financial viability but also introduces complexities regarding creditor claims.

Clarity in Ownership Records

Emphasis is placed on maintaining clear records in registries, particularly when multiple parties have interests in a single piece of land or structure due to surface rights arrangements.

Cemetery Lot Ownership Dynamics

Unique Aspects of Cemetery Lots

The discussion touches upon cemetery lots being treated similarly to real estate under certain conditions, including potential liabilities such as unpaid dues impacting ownership status.

Legal Considerations for Lot Utilization

Investment Types in Construction and Inheritance Rights

Investment and Registration in Construction

Discussion on the types of investments or loans related to construction, emphasizing the need for a comprehensive understanding of property registration.

Reference to a decree from 2019 regarding property registration that was not implemented but has implications at the national level.

Legal Framework and Extinction of Domain

Explanation of modifications to civil code concerning the extinction of domain, particularly through judicial sentences linked to asset laundering and drug trafficking.

Mention of vehicle auctions as a method for extinguishing domain rights, highlighting practical applications of legal norms.

Inheritance Assignment

Recap on inheritance assignment discussed in previous classes, focusing on Article 2302 which outlines effects between parties upon contract signing.

Clarification that effects are recognized from the moment an inheritance assignment is formalized, impacting other heirs and creditors.

Publicity Requirements for Inheritance Assignments

Importance of publicizing inheritance assignments by incorporating them into succession files to inform creditors about claims.

The necessity for notaries to ensure both substantive publicity and compliance with provincial laws regarding inheritance rights registration.

Specific Articles Impacting Property Rights

Introduction to Article 2309 which addresses specific property assignments within inheritances, differentiating it from general inheritance rights.

Understanding Judicial and Notarial Processes in Succession

The Role of Adjudication and Session Writing

The adjudication process formalizes the transfer of rights to the assignee, applying Article 239, which incorporates a specific session writing. This indicates that the procedure begins and ends judicially.

There is a significant question regarding the necessity of writing this specific session. The law does not mandate it, nor does the registry reference it, leading to confusion about its importance.

Historical context shows that at one point, registries did not record these sessions due to lack of legal backing or clarity in regulations.

Some argue there should be a section addressing the registration of rights assignments; however, existing codes suggest that if title rules do not apply for interpretation, they certainly won't apply for registration.

The code explicitly states that judicial declarations are necessary for heirs, emphasizing that procedures must remain within judicial frameworks rather than solely notarial ones.

Judicial vs. Private Partitioning

In Argentina's legal framework, discussions around extrajudicial succession highlight differences from other countries. The local code emphasizes judicial declarations as essential for heir recognition.

Judicial partitioning processes are straightforward: after declaring heirs, subsequent phases involve asset reporting and agreements on distribution.

The code now allows private partitions if all co-participants are present and capable. This can lead to total or partial divisions of assets without needing full consensus on all items involved.

It’s clarified that partitions can occur without dividing all assets; participants may choose to divide only part of their inheritance while retaining shared ownership over others.

Implications of Non-registration

Understanding how sessions impact registration is crucial; even if a session isn't registered formally, it can still be recognized within succession processes when included in court proceedings.

If an estate process has begun with a declaration but lacks formal session registration, it could complicate matters later when trying to establish ownership or transfer rights post-death.

Legal practitioners must verify whether succession processes have commenced by checking with relevant courts before proceeding with any transactions involving inherited properties or rights.

Challenges in Private Successions

Issues arise during private partitions where informal agreements might not be communicated effectively to third parties—this raises concerns about transparency in property transfers post-session assignment.

Legal Implications of Hereditary Rights and Registrations

Overview of Registration Issues in Hereditary Rights

The speaker discusses the lack of harm regarding the last provision from the registry in 2022, which clarifies aspects of hereditary rights registration.

It is noted that actions related to hereditary rights must be formalized before being registered; otherwise, they may be rejected by the registry.

The introduction of a new legal concept, "sale by abbreviated tract," complicates the understanding of hereditary rights transfer and registration.

Clarification on Community Heritage and Rights Transfer

The speaker emphasizes that even with an inscribed declaration, community heritage remains until partitioning occurs, allowing for third-party transfers among co-heirs.

A question arises about why Santa Fe's registration law previously prohibited registering sessions of hereditary rights despite having an inscribed declaration.

Changes in Technical Provisions for Registration

A technical provision was established to allow the registration of sessions concerning hereditary rights, particularly regarding fractional shares.

Despite this change, there is still a reiteration that certain registrations will not occur as expected under previous provisions.

Judicial Processes and Their Impact on Hereditary Transfers

The speaker suggests that if a judicial process concludes with a judicial adjudication, it should not pose problems for registering sessions related to specific properties.

There is potential for public acknowledgment within succession processes through proper declarations linked to specific properties.

Understanding Community Heritage and Its Legal Status

To register a declaration effectively, one must report property details; this initiates involvement in succession processes.

The discussion highlights how transferring property among heirs can conclude succession without needing formal partitioning.

Misconceptions About Property Transfer Terminology

The term "transfer" has been debated; it does not equate to actual ownership but rather indicates ongoing community heritage until formally divided.

Historical context reveals confusion over terminology used in registries regarding inheritance and property transfer practices.

Conclusion on Legal Perspectives Regarding Inheritance

Discussions with legal experts have clarified misconceptions about what constitutes ownership versus mere acknowledgment within inheritance contexts.

Understanding the Legal Implications of Property Division

The Nature of Property Transfer and Partition

The discussion revolves around the complexities of property transfer through declaratory statements, highlighting that what is perceived as a condominium division may actually be a partition.

It is emphasized that jurisdiction differs based on whether it’s a condominium or judicial partition; the competent court varies accordingly.

The interpretation by courts regarding condominium divisions and partitions has historically been inconsistent, creating confusion among legal professionals.

A significant point raised is about the validity of transfers made via declaratory statements, which some argue do not constitute true transfers in legal terms.

The impact of these interpretations on registration processes is crucial; all discussions have implications for how property rights are recorded.

Registration Challenges and Judicial Processes

Notification to third parties regarding formalized sessions must follow specific procedures to ensure compliance with legal codes.

There are challenges when registering hereditary rights after a declaratory statement; often, such registrations face rejection if not properly documented beforehand.

Legal provisions state that hereditary rights can be registered prior to the declaratory statement, but complications arise if documentation isn't correctly submitted.

Courts may issue supplementary orders to facilitate registration when initial submissions are rejected due to timing issues related to declaratory statements.

Successful registration often requires judicial resolutions that clarify ownership rights and actions taken before or after declarations.

Principles of Registration

An introduction to registral principles indicates their foundational role in ensuring accurate property records and transactions within legal frameworks.

Principles of the Registral System

Overview of Registral Principles

The registral system is based on a technical coordination and systematization of legal norms, establishing fundamental principles that govern registration.

The first principle is the "principle of instance," which emphasizes that registration occurs at the request (or petition) of an interested party rather than automatically by the registrar.

This principle indicates that for any registration to take place, there must be a legitimate request from an interested party, highlighting the importance of having standing in legal matters.

Legal Framework and Authority

Articles 6 and 9 of laws 17801 and 6435 outline who can initiate changes in registration, emphasizing the role of authorized individuals in this process.

The document's authorizing individual (notary, judicial officer, or administrative authority) plays a crucial role in initiating registrations; their involvement is mandatory for valid requests.

If an authorized notary passes away, alternative procedures must be followed to ensure proper representation for registration requests.

Obligations and Consequences

Article 8 establishes that certain registrations are mandatory; failure to register can lead to loss of priority rights associated with registered documents.

The discussion around whether registration obligations are means-based or result-oriented highlights the necessity for public awareness regarding registered documents.

Characteristics of Registration Requests

The rogatory process has three key characteristics: it is a unilateral declaration made to a state entity (the property registry), it allows various parties to initiate requests, and it requires formal submission directed at the registrar.

Courts may also intervene by ordering registrations when necessary during legal proceedings involving property rights.

Practical Implications

When submitting a request for registration (referred to as SRD), it must be accompanied by appropriate documentation; this process currently involves physical submission but may evolve into virtual systems in the future.

Understanding the Virtual Registration System

The Priority of Document Submission

Discussion on which system has priority in document submission: the first to arrive or the one sent earlier.

Introduction of a virtual desk system that requires documents to be submitted online, enhancing convenience for users.

Benefits of Online Submission

A personal anecdote about an attorney who experiences insomnia and finds relief by submitting documents at odd hours without needing to visit the registry early in the morning.

The Nature of Registration Requests

Clarification that regardless of whether registration occurs under a chronological or real folio system, the request remains fundamentally unchanged.

Explanation of what constitutes a "rogatoria," emphasizing it as an extract from the deed containing essential data rather than all details.

Key Components of Rogatoria

Identification of critical elements included in rogatoria such as parties involved (transmitter and acquirer), property description, and applicant information.

Importance of including references like deed number, date, and certificate details within rogatoria for clarity and compliance with regulations.

Legal Framework and Compliance

Emphasis on how legal requirements dictate that certain information must be present in both deeds and rogatorias but do not necessitate accompanying certificates during submission.

Mention that national law refers to local regulations for specific procedures regarding document registration requests.

Conclusion

Introduction to Legal Concepts

Class Overview

The class begins with an introduction, acknowledging the absence of Dr. Nadalini due to a conference.

The instructor prompts students for engagement and mentions the need for attendance records.

Vices in Legal Acts

Today's focus is on "vicios de los actos jurídicos" (vices of legal acts), following previous discussions on will and capacity vices.

The three main types of vices discussed are:

Lesion

Simulation

Fraud against creditors

Understanding Lesion in Legal Context

Definition and Implications

Lesion is defined as a situation where one party exploits another's vulnerability during contract formation, potentially leading to nullity.

Unlike other vices, lesion focuses on specific circumstances affecting one party rather than general issues like error or lack of freedom.

Legal Framework

Article 332 of the Civil Code outlines conditions under which nullity or modification can be demanded when exploitation occurs due to necessity or weakness.

It presumes exploitation in cases of significant disparity between contractual performances, calculated at the time of the act.

Elements Constituting Lesion

Key Components

There are three elements involved in establishing lesion:

One objective element: economic disparity between parties' performances.

Two subjective elements:

The condition of the injured party (the "lesionado").

The intent or state of mind of the exploiting party ("lesionador").

Nature and Consequences

Economic Benefit and the Concept of Need

Understanding the Concept of Need

The concept of need is defined as a lack or scarcity of essential items necessary for life, extending beyond mere economic or material situations to include moral, spiritual despair, or danger.

Needs can be current or imminent and are not limited to economic necessity; they encompass broader aspects affecting individuals and their families.

Legal Implications of Need in Transactions

Jurisprudence often recognizes actions for nullity based on economic need, but it also extends to moral needs and health-related issues.

An example illustrates a seller facing significant health issues selling property at 50% below market value due to urgent financial needs for treatment abroad.

Exploitation in Transactions

The buyer benefits disproportionately from the seller's dire situation, acquiring an asset worth significantly more than the purchase price.

Proving exploitation in court can be challenging for the injured party (the seller), especially if circumstances change post-sale.

Burden of Proof in Legal Context

To annul a transaction, the injured party must demonstrate one of three conditions: need, psychological weakness, or inexperience.

Establishing economic imbalance related to subjective circumstances is particularly difficult for sellers seeking legal recourse.

Judicial Considerations and Market Value Confusion

In cases where doubt exists regarding exploitation during transactions, courts typically favor upholding contracts based on good faith principles.

The complexity arises when market values fluctuate; discrepancies between listed prices and actual values complicate assessments of economic imbalance.

Challenges with Property Valuation

Determining when an economic disproportion exists becomes intricate due to varying valuations set by real estate agents versus actual sale prices.

Understanding Legal Vulnerability in Real Estate Transactions

The Role of Subjective Elements in Legal Transactions

The discussion emphasizes the strict interpretation of subjective elements in legal transactions, particularly regarding the necessity for a need to be classified as "grave" for it to impact the transaction.

In real estate markets with minimal direct interaction between buyers and sellers, intermediaries like real estate agents play a crucial role, often limiting personal connections until formal agreements are made.

Psychological Weakness and Its Implications

Cases involving elderly individuals often highlight issues of psychological weakness rather than outright incapacity; this can lead to situations where individuals do not fully comprehend the legal acts they are undertaking.

It is noted that psychological weakness may prevent individuals from understanding their actions during legal transactions, which does not necessarily imply deceit but rather a lack of comprehension.

Importance of Objective Evidence in Legal Claims

In judicial processes concerning claims of injury or loss, expert testimonies from real estate professionals are vital to establish the actual market value at which properties are being sold.

If similar properties are selling at comparable prices, it becomes challenging to prove any objective element necessary for establishing an injury claim.

Challenges with Prescription and Time Limits

The difficulty in proving claims related to psychological weakness is compounded by prescription laws; actions must typically be initiated within two years from when the injured party was obligated to fulfill their part of a contract.

Many cases arise after this two-year period has elapsed, leading to potential dismissal based on prescription defenses.

Case Study: Donation and Perceived Coercion

A specific case involving an 83-year-old donating property raises questions about whether she was misled or genuinely intended to make the donation despite her advanced age.

The discussion reflects on how changes in legislation have reduced prescription periods from five years to two years for certain claims, impacting how such cases are approached legally.

Understanding Psychological Fragility

Psychological fragility is defined as a state that leads individuals into making detrimental decisions due to an inability to grasp the implications of their actions. This concept is critical when evaluating legal capacity.

Legal Considerations in Contractual Capacity

Understanding Incapacity and Inexperience

The discussion begins with the concept of incapacity, emphasizing the need for proper registration or seeking nullity based on various proofs.

Inexperience is highlighted as a vague subjective condition where an individual cannot adequately assess the implications of a harmful act due to lack of knowledge gained through experience.

The speaker notes that proving inexperience can be challenging, especially when considering the nature of the legal act and its object, which may not require prior experience.

It is mentioned that Argentine law does not recognize ignorance of the law as a valid defense against claims of incapacity or inexperience.

Exploitation and Economic Advantage

The focus shifts to exploitation, where it is crucial for the exploiter to be aware of the victim's inferior position; this awareness indicates bad faith in their actions.

A reference is made to economic uncertainty affecting business transactions, leading to agreements often being below market value across various sectors, including labor disputes.

Practical Implications in Legal Agreements

Real-world examples illustrate how settlements often include clauses stating that parties are aware of their circumstances and do not suffer from psychological weaknesses at the time of agreement.

There’s mention of how these clauses aim to prevent future claims regarding incapacity or exploitation after agreements are signed.

Judicial Oversight and Responsibility

The importance of judicial oversight is discussed, particularly in labor courts where judges ensure that settlement amounts align with non-waivable rights before approving agreements.

Practitioners are advised to consider these legal nuances when drafting contracts or agreements to avoid potential liabilities related to claims of injury or exploitation.

Objective Elements in Legal Injury Cases

The conversation concludes by addressing objective elements necessary for establishing legal injury, focusing on benefits obtained through exploiting another's inferior situation.

Understanding the Difference Between Legal Concepts

The Concept of Lesion vs. Theory of Imprévision

The speaker introduces a discussion on the differences between the legal concept of lesion and other legal figures, specifically referencing the theory of imprévision.

The theory of imprévision is described as a contractual cause that can lead to the ineffectiveness of a legal act when one party's performance becomes impossible due to an unforeseen event occurring after the contract was established.