Escribanía - 06/06 - Parte 1

Class Recording Issues and Personal Updates

Class Recording Problems

• Discussion about a missed class recording, which was saved locally instead of in the cloud. The speaker expresses concern over the missing second block of the recording.

• Confirmation that other classes are recorded and available on YouTube, but there is an issue with fitting everything together.

Technical Difficulties

• One participant requests to be made host for technical support during the session. There is confusion regarding how to designate a host.

• A greeting exchange occurs among participants, indicating a friendly atmosphere despite technical issues.

Personal News: Alberto's Passing

Announcement of Death

• A participant shares news about Alberto's death, revealing he passed away due to lung cancer after being operated on.

• Reflection on Alberto’s age (68 years old), highlighting his smoking habits as a contributing factor to his illness.

Recollections and Anecdotes

• Participants reminisce about their experiences with Alberto, including his habit of stepping out to smoke during classes and exams.

• Discussion about Alberto's family situation; he had financial stability but faced challenges in starting his practice due to personal decisions.

Transitioning Back to Class Topics

Moving Forward with Class Content

• The conversation shifts back to class matters as participants discuss their roles in the session.

• Request for everyone to turn on their cameras for better engagement during the lesson.

Behavioral Systems and Notarial Acts

Introduction to Behavioral Systems

• Recap of previous discussions regarding behavioral systems where situations lead to behaviors resulting in new situations. An example involving sales is provided.

Key Concepts in Notarial Acts

• Introduction of budgets related to behavior: capacity, legitimacy, and suitability of objects involved in notarial acts.

• Explanation that annulment acts protect incapable persons by declaring actions null if performed by them without competence.

Legal Perspectives on Capacity

Notarial Capacity and Legal Validity

Understanding Notarial Functions and Capacity

• The role of the notary is crucial in ensuring that all parties involved in a notarial act are capable and protected, particularly the grantors requesting the act.

• If a notary's incapacity affects their narrative of the act, it can invalidate the entire process, emphasizing the importance of accuracy in their account.

• The notarial act serves to formalize agreements between parties; thus, any incapacity on part of the notary does not inherently nullify these acts unless specified by law.

Legal Framework Governing Notaries

• Article 292 of the Civil Code outlines prerequisites for a public official's validity during their function, stating that acts performed before suspension notification remain valid if executed according to legal regulations.

• Good faith plays a significant role; even if there are deficiencies in appointment requirements, actions taken under legitimate appearance do not invalidate prior acts.

Protection Against Incapacity

• The concept of protecting incapable individuals aims to prevent nullification of acts that could harm those who rely on them; this protection must balance with safeguarding public interest.

• A public official’s lack of capacity at the time does not automatically invalidate an act unless they have been officially notified about their suspension.

Requirements for Notarial Appointment

• Law 6898 specifies necessary qualifications for becoming a notary, including age and mental competency as outlined in Articles 1 and 4.

• Individuals with physical or mental disabilities disqualifying them from professional practice cannot serve as notaries; this includes those deemed incapable under specific conditions.

Legitimacy and Legal Capacity

• Legitimacy refers to the relationship between an individual's current status and their desired position within legal frameworks; understanding this is vital for effective practice as a notary.

• Articles 1001 and 1002 highlight issues related to legal capacity often overlooked but essential for maintaining public trust in notarized documents.

Legal Requirements for Notaries

Involuntary Acts and Criminal Convictions

• The discussion begins with the implications of involuntary or negligent acts as outlined in Article 89 of the Penal Code, particularly concerning minor decisions.

• Section D addresses individuals convicted domestically or internationally for crimes that warrant public action, excluding those sentenced for negligent acts.

Disqualifications from Notarial Practice

• Individuals who are bankrupt, insolvent without rehabilitation, or disqualified due to misconduct cannot practice as notaries.

• Article 290 of the Civil and Commercial Code specifies requirements for a public instrument's validity based on a notary's powers and territorial jurisdiction.

Territorial Jurisdiction of Notaries

• The law does not explicitly define territorial jurisdiction; however, it is implied that notaries must establish their professional address within their registered department.

• Changes in address must be formally notified to relevant authorities; otherwise, they will not be recognized.

Extent of Jurisdiction

• A notary’s jurisdiction extends beyond their registered department when documenting wills or verifying facts in bordering departments.

Positive and Negative Legitimacy

• Positive legitimacy requires that a notary must have been requested to act; they cannot act ex officio. This is emphasized in Article 10 of Law 6898.

• Negative legitimacy involves ensuring the notary has no personal interest in the matter at hand, as stated in Article 291 of the Civil Code.

Conditions for Practicing as a Notary

• To practice as a notary, one must meet several criteria including being an Argentine citizen (native or naturalized), having legal age, and possessing an authorized degree.

• Additional requirements include impeccable conduct, registration with the bar association, and residency within the province for at least five years.

Restrictions on Professional Practice

• Individuals accused of public action crimes during preventive detention are barred from practicing unless related to involuntary acts or specific exceptions under Article 89.

Legal Procedures and Notary Regulations

Overview of Legal Processes

• The discussion emphasizes the importance of reading relevant articles to understand legal processes, particularly regarding competitions and accreditation before a judge.

• Article two specifies that pertinent aspects must be justified before a civil judge in Santa Fe or Rosario, with fiscal intervention from the College of Notaries.

Civil Court Procedures

• A certificate of good conduct is required, ensuring no prior criminal record exists for applicants; this is crucial for maintaining integrity in legal proceedings.

• The Cribano bar association acts as prosecutor in these cases, highlighting the role of professional oversight in notarial acts.

Incompatibilities in Notary Profession

• Articles 7 and 8 outline incompatibilities for notaries, including holding public positions or engaging in commerce that could conflict with their duties.

• Violations related to practicing law while serving as a notary can lead to dismissal from office, emphasizing strict adherence to ethical standards.

Exceptions to Incompatibility Rules

• Certain roles involving notarial functions are exempt from incompatibility provisions; this includes positions within institutions like banks where notarial duties are performed.

• Positions such as directors or trustees do not invalidate notarial acts if they comply with specific regulations set forth by law.

Understanding Suitability of Object

• The suitability of the object refers to the legal act's subject matter; it must be clearly defined for effective execution and validation.

• In transactions like sales, both the item being sold and its price constitute the object upon which legal effects will fall.

Notarial Competence and Public Faith

Understanding Notarial Functions

• The scribe's role involves narrating observable events, behaviors, and material outcomes, similar to legal acts where certain assets cannot be the subject of specific actions (e.g., movable property cannot be mortgaged).

• Certain acts are excluded from public faith; for instance, procedural acts like marriage or birth certificates cannot be attested by a notary as they fall under the jurisdiction of other officials.

• Notaries have limitations on what they can narrate due to delegation of authority to other public officials, such as police or civil registry officers.

Scope of Notarial Authority

• Some acts are designated for special notaries (e.g., government-related tasks), indicating that notarial competence is often defined by exclusion—what others cannot do, notaries may handle.

• Article 10 of Law 6898 outlines that notaries are responsible for drafting deeds and contracts. Article 12 further clarifies their competencies regarding public acts authorized only by registry notaries.

Limitations on Legal Acts

• Notaries must certify authenticity in various contexts: signatures, existence of entities, inventories, and more. They also engage in all acts lacking formal public deed requirements.

• Certain goods or behaviors cannot be objects of legal acts; this includes items outside commerce or legally irrelevant behaviors/events that lack legal effect.

Challenges in Narration

• Public acts are inherently authentic; thus, a notary cannot attest to another's public act. This limitation extends to things that can't be perceived (e.g., gases).

• Complex events or results difficult to narrate (like lengthy meetings or damaged property descriptions) may also fall outside the scope of what can be certified by a notary.

Presumptions and Authenticity

• The integrity of the notary is foundational; their statements are presumed true unless proven otherwise. This presumption creates challenges when verifying complex situations like assembly meetings or property conditions.

• Article 296 emphasizes that notarized actions are incontrovertible until declared false. This principle raises concerns about potential inaccuracies in complex scenarios requiring technical verification methods (e.g., recordings for meetings).

Understanding the Role of Notaries in Illicit Acts

Jurisdiction and Illicit Acts

• The discussion begins with the jurisdiction of notaries concerning illegal acts, questioning whether they can act in cases involving illicit activities.

• Mario Cini is credited for systematizing the understanding of crimes, distinguishing between public action crimes, private action crimes, and those dependent on private action.

Authority and Procedural Codes

• It is emphasized that procedural codes typically grant police authority to act immediately in illegal matters, including taking fingerprints as per Criminal Procedure Code requirements.

• In civil matters, notarial evidence (like public deeds) holds authenticity that judges cannot question unless proven false.

Distinction Between Civil and Criminal Matters

• The aim of criminal proceedings is to uncover historical truth through judicial reasoning; thus, a notary's role does not include narrating crimes.

• Notaries are prohibited from documenting illicit acts such as homicide or injury due to their duty to protect victims rather than recount events.

Legal Presumptions and Notarial Function

• The presumption exists that notaries tell the truth to ensure stability in legal matters outside court processes.

• Public instruments aim to eliminate doubts regarding extra-procedural issues; however, many daily operations remain unregulated by judiciary oversight.

Evidence Collection and Judicial Assessment

• The function of a notary includes creating stability in relationships outside judicial processes while adhering to legal presumptions about capacity.

• In cases where illicit behavior is involved but no judicial action has commenced, a notary may collect evidence under specific conditions.

Limitations on Notarial Evidence

• A clear distinction is made: while a notary cannot prove illicit behavior itself, they may document evidence if no legal proceedings have started.

Notarial Acts and Their Implications

Understanding the Role of Notarial Acts in Taxation

• The notarial act can attest to various presumptions used by tax authorities, such as FIPO and provincial tax agencies, which may disregard the declared value in deeds.

• Tax collection agencies can only challenge the credibility of the deed if they believe the stated price does not reflect reality; for instance, a sale recorded at $10,000 could be disputed.

• Public faith covers what is explicitly stated in a deed; however, it does not validate claims about undisclosed transactions or payments made outside official records.

• The state may assert inflated property values based on location and size, but discrepancies between registered values and market estimates can lead to disputes with tax authorities.

• While public faith supports what is documented by a notary, it does not protect against allegations of under-the-table dealings that are unrecorded.

Challenges Faced by Notaries

• Notaries must navigate complex situations involving illicit acts or natural events rather than straightforward legal transactions when documenting facts.

• Distinguishing between legitimate claims and potential criminal evidence (e.g., stains on a tablecloth) presents significant challenges for notaries during documentation processes.

• Notaries often face requests to confirm states of objects (like damaged cars), raising questions about their ability to ascertain the cause of damage—whether accidental or criminal.

Personal Experiences Highlighting Ethical Dilemmas

• A personal anecdote illustrates how early career experiences shaped understanding of ethical responsibilities in handling sensitive cases involving minors and legal accusations.

• In one case, a defense attorney sought truthful statements from a minor involved in an indecent assault case, emphasizing the importance of honesty in legal proceedings despite potential complications.

Legal Obligations and Competence in Notarial Acts

Understanding the Role of Minors in Legal Proceedings

• The speaker discusses the evolving legal landscape regarding minors, emphasizing that it is now advisable for minors to be heard in trials, contrasting past practices where a child's signature on a deed was unthinkable.

Challenges Faced by Legal Professionals

• A case is presented where a woman altered her statement, raising questions about the integrity of testimonies and the influence of external factors like police pressure.

The Importance of Acting with Clarity

• The speaker stresses the necessity for legal professionals to act decisively in ambiguous situations, highlighting their obligation to clarify jurisdictional issues when they arise.

Jurisdictional Responsibilities

• It is noted that notaries must inform applicants about potential jurisdictional incompetence and direct them appropriately, reinforcing their duty to act responsibly within legal frameworks.

Interactions with Law Enforcement

• The discussion includes scenarios where notaries may need to intervene or report findings directly to law enforcement, illustrating the collaborative nature of legal processes.

The Harmonization of Notarial and Judicial Functions

Debating Professional Obligations

• The speaker references Mario Cini's efforts to harmonize notarial duties with judicial responsibilities, indicating ongoing discussions among legal professionals about these roles.

Refusal Based on Ethical Grounds

• Notaries have the right to refuse requests based on personal convictions or perceived illegality, underscoring ethical considerations in their practice.

Handling Urgent Situations

• An example is given where an individual might urgently need assistance due to time constraints; this raises questions about how notaries should respond under pressure while adhering to proper protocols.

Recording Evidence Responsibly

• The importance of documenting evidence accurately is highlighted. For instance, if a recording related to a crime exists, it must be handled carefully by notaries who are obligated to maintain transparency during proceedings.

Obligations Toward Defense Rights

Discussion on Legal Procedures and Evidence

The Role of Recordings in Legal Contexts

• The conversation begins with a misunderstanding about an example involving a bicycle, leading to clarification regarding the importance of recorded statements in legal cases.

• One participant emphasizes that recordings should not be left to the judge's discretion; they suggest making a recording to attest to interactions, especially when minors are involved.

Authenticity of Evidence

• A discussion arises about the need for authenticity in evidence, particularly when proving misconduct such as theft by an employee.

• An anecdote is shared about unusual occurrences during the pandemic, highlighting challenges faced due to restrictions on international flights.

Case Study: Detention at Córdoba Airport

• A specific case is presented where a German woman was detained at Córdoba airport without proper documentation from immigration officials.

• The speaker advises seeking a notary public to verify her detention, which later served as preliminary written evidence in federal court.

Legal Implications and Competence Issues

• The notary's report was accepted as factual evidence despite debates over jurisdictional competence regarding national versus provincial authority.

• It is noted that while the notary acted competently under challenging circumstances, there were still questions about his authority at an airport setting.

Challenges in Narrating Events

• The complexity of narrating crimes versus presenting evidence is discussed; it’s emphasized that witness statements can be contested more easily than formal reports from authorities like notaries.

• There’s recognition of the difficulties faced when trying to document events immediately after they occur versus later recounting them.

Anecdotes and Historical References

• A reference is made to historical figures (like Serpico), illustrating how perceptions of truth and deception have evolved within legal contexts.

Understanding Legal Gray Areas

The Complexity of Legal Interpretation

• The speaker reflects on 50 years of legal practice, noting that many issues are now clearly defined in the code, yet still remain debatable.

• Emphasizes the challenges lawyers face when dealing with cases that cannot be proven, suggesting that filing a complaint is often necessary despite its implications.

• Mentions Mario Cini as a key figure who has explored these complexities through extensive study, highlighting differing opinions on what constitutes illegal acts.

Objectivity in Notarial Actions

• Discusses the importance of objectivity in notarial actions and how it relates to the presumption of veracity required from notaries.

• Stresses that notaries must provide an objective narrative based on their sensory perceptions rather than subjective judgments.

Distinguishing Perception from Judgment

• Explains that the content of a legal act involves self-regulation of interests between parties, using sales contracts as an example.

• Clarifies that while notaries perceive objects, it is their perception that determines the content of notarial acts—this distinction is crucial for understanding legal documentation.

Judgments of Essence vs. Existence

• Introduces the concept of judgments regarding essence and existence, emphasizing how these judgments influence what a notary perceives during transactions.

• Highlights the fleeting nature of these judgments and how they impact public faith in notarized documents.

Public Faith and Notarial Authority

• Differentiates between what is covered by public faith (sensory perceptions by the notary) versus personal judgments made by them about individuals' capabilities or powers.

Understanding Sensory Perception in Notarial Practice

The Division of Senses

• Mario Ceo discusses the classification of senses into superior (sight and hearing) and inferior (touch, taste, smell), emphasizing their roles in narrative objectivity.

Objectivity Through Superior Senses

• The scribe's narrative must be objective, achievable only through superior senses that remain independent from personal incorporation.

Inferior Senses and Personal Experience

• Inferior senses require personal incorporation; for example, tasting or smelling involves breaking down experiences into oneself, contrasting with the detachment of sight and hearing.

Subjective Perception Variability

• Individual perception varies significantly; what one person perceives as "yellow" may differ for another. This subjectivity extends to sensations like sound and pain.

Historical Context on Notarial Practices

• The Constitution of Maximilian (1512) mandates notaries to document only what is bodily perceived, highlighting the need for witness corroboration in sensory matters beyond sight and hearing.

Limitations of Notary Testimony

• Notaries can only attest to perceptions they directly observe; thus, witnesses must validate experiences involving taste, touch, or smell during documentation.

Credibility of Sensory Testimonies

• If a notary also engages in tasting or touching during an event, it enhances credibility. Historical practices already recognized the importance of sensory validation.

Legal Interpretations on Perception

• The National Civil Law Conference (2000) interprets that notarial deeds are limited to facts verified through direct observation by the notary or witnesses.

Objective vs. Subjective Perceptions

• Mario Cini argues for a sufficiently objective perception necessary for legal documentation; subjective experiences complicate this notion but are acknowledged within legal frameworks.

Public Faith and Date Attestation

• There is debate over whether dates fall under public faith; most agree they do since they are perceptible facts that can be validated by the notary’s observations.

Conclusion on Sensory Threshold in Notarial Work

Notarial Competence and Public Faith

Understanding Notary Responsibilities

• The notary's role involves confirming the capability of grantors in public deeds, which can be challenged when adults of advanced age are involved.

• Notaries do not judge the capacity of individuals; they only attest to what occurs in their presence, emphasizing that their public faith is based on observable actions rather than personal judgments.

• The issue of notarial responsibility regarding the mental capacity of individuals has been widely discussed, highlighting a critical aspect of notarial practice.

Professional Responsibility and Capacity Assessment

• Notaries must avoid over-attesting capabilities; they should focus on accurately reflecting their observations without making unfounded claims about an individual's mental faculties.

• If a person lacking mental capacity approaches a notary for a will, it raises ethical concerns and potential legal implications for the notary.

Evaluating Mental Capacity

• A notary cannot simply write down statements without ensuring that individuals possess the necessary understanding to engage in legal acts.

• The assessment of an individual's competence often requires careful observation and sometimes consultation with medical professionals to confirm mental capacity.

Challenges in Determining Capability

• There is no definitive age at which a person's capability ceases; thus, it relies heavily on the wisdom and judgment of the notary during assessments.

• Discussions around whether to request medical certificates for assessing capacity highlight differing opinions among practitioners regarding best practices.

Legal Implications and Best Practices

• Some argue against requiring medical certificates if the individual appears competent; however, this approach carries risks if later disputes arise regarding their capacity.

Notary Responsibilities and Witness Requirements

Understanding Notary Obligations

• The notary has a fundamental obligation to ensure that the individual executing an act is qualified. If there are doubts about the person's qualifications, the notary should refrain from proceeding with the act.

• In situations where confidence in a person's understanding is lacking, the notary can request a certificate. This certificate serves to confirm that the individual comprehends their actions rather than extending any legal competence.

Role of Witnesses in Legal Acts

• The presence of witnesses plays a crucial role in validating wills and other legal documents. Their involvement ensures that parties understand what they are signing or agreeing to.

• For added security, a notary may choose to involve two or three witnesses during an act, enhancing the legitimacy and reliability of the process.

Conclusion of Discussion