Escribanía - 10/05 - Parte 3

Introduction to Public Instruments

Initial Greetings and Class Setup

• The session begins with greetings, indicating a casual atmosphere as participants check audio connectivity.

• There is confusion regarding the class start time, suggesting that some participants may have miscommunicated or misunderstood the schedule.

Instructor Introduction

• Joaquín Rotundo introduces himself as the substitute for Dr. Narini, tasked with discussing public instruments today.

• He expresses concern about visibility on Zoom due to small participant images and considers switching devices for better connection.

Understanding Public Instruments

Definition of Public Instruments

• Joaquín prompts participants to define what they consider a public instrument, emphasizing its importance in legal contexts.

• A public instrument is described as one issued by a public authority or through a notary, which aligns with civil code definitions.

Distinction Between Instrument Types

• The discussion highlights differences between public instruments (involving officials like notaries), private instruments (between individuals), and unsigned particular instruments.

• The civil code categorizes three types of instruments: public, private, and unsigned particular; however, it lacks explicit definitions for each type.

Legal Implications of Signatures

Role of Signatures in Legal Documents

• A signature is defined as a unique mark representing an individual's identity and intention within legal documents.

• The significance of signatures varies based on whether they are part of a public or private instrument; signatures on public documents carry presumptions of authenticity.

Enforcement and Responsibility

Understanding Signature Recognition and Certification

Importance of Signature Recognition

• The discussion begins with the significance of signature recognition in legal documents, emphasizing that individuals must confirm whether a signature attributed to them is indeed theirs.

• Article 314 states that anyone against whom a document is presented must declare if the signature belongs to them; heirs can only express ignorance regarding the authenticity of a deceased person's signature.

• The principle established is that the author of a document does not automatically presume authorship; they must affirm their signature for it to be valid.

Legal Implications of Recognized Signatures

• A recognized private instrument cannot be contested by those who acknowledged it, except for defects in the act of recognition itself.

• Digital impressions serve as preliminary written proof and can be challenged regarding their content but not their existence.

Certification Process and Its Relevance

• The conversation shifts to how signatures are recognized between parties involved in contracts, particularly rental agreements, and how this recognition holds value against third parties.

• For documents lacking registration, certain requirements must be met for third-party effectiveness; notably, legal stamping provides "certain date" status to documents.

Establishing Certain Dates

• Article 317 indicates that the effectiveness of recognized private instruments extends to third parties from their established date.

• The code allows flexibility in determining when a document acquires its certain date based on specific events or actions taken concerning the document.

Historical Context and Current Practices

• Previous regulations under Vélez's code were more detailed about what constituted a certain date, including court exhibits or notarization by witnesses.

• Once a document is acknowledged by its signer with a certain date, it becomes immune from contestation unless proven otherwise through certification processes.

Advantages of Signature Certification

• Certified signatures provide assurance regarding both the authority behind the document and its contents; once certified by a notary public, disputing such signatures becomes legally challenging.

• Emphasizing efficiency in legal proceedings, certified signatures prevent lengthy judicial delays associated with handwriting analysis or disputes over authenticity.

Instruments Publicos y Privados en el Derecho

Introducción a los Instrumentos Privados

• Se discute la importancia de los instrumentos privados, especialmente en relación con la ejecución de contratos y documentos específicos.

• No se presenta un concepto claro de instrumento público, pero se comienza a enumerar qué constituye uno según el código.

Definición y Características de Instrumentos Públicos

• Las escrituras públicas son consideradas el instrumento público por excelencia debido a su uso frecuente en actos jurídicos relevantes.

• El artículo 299 define una escritura pública como un documento extendido en el protocolo de un escribano público o funcionario autorizado.

Funciones del Escribano Público

• Se menciona que los cónsules también pueden instrumentar escrituras públicas, ampliando así la definición de funcionarios autorizados.

• Se aclara la diferencia entre "copia" y "testimonio", indicando que ambos términos son sinónimos dentro del contexto legal actual.

Protocolo y Custodia de Escrituras

• Al firmar una escritura, solo se genera un ejemplar que queda bajo custodia del escribano; este es enviado posteriormente al archivo correspondiente para su conservación.

• La importancia de mantener la matriz (original) de la escritura asegura su integridad y evita riesgos asociados a su pérdida.

Otros Instrumentos Públicos

• Además de las escrituras, los escribanos pueden extender otros documentos como certificaciones y actas, aunque no todos son considerados escrituras públicas.

• Los funcionarios públicos abarcan diversas áreas del estado, incluyendo jueces que emiten sentencias o actas administrativas.

Títulos Emitidos por el Estado

• Se discuten títulos emitidos por entidades estatales que gozan de presunción de autenticidad, como billetes o títulos de crédito.

Requisitos para Validez del Instrumento Público

• El artículo 290 establece requisitos esenciales para la validez del instrumento público, enfatizando la actuación dentro de las atribuciones legales del oficial público.

Understanding the Competence of Public Officials

The Role and Limitations of Notaries

• A public official, such as a judge, has specific powers to issue rulings on matters that meet procedural requirements.

• Notaries have limited competencies; they cannot perform functions reserved for other officials, like officiating marriages or certifying criminal evidence.

• According to legal sources, notaries lack authority over events that are legally irrelevant or do not produce legal effects.

• Notaries can only certify observable facts; they cannot provide proof for intangible elements like gases or electricity.

• In cases involving illicit actions, notaries cannot intervene until a private action is initiated in court.

Territorial Competence of Notaries

• Territorial competence refers to the geographical limits within which a public official can operate. For example, judges must declare incompetence if a case falls outside their jurisdiction.

• Each province defines its own territorial boundaries for notarial functions; this does not negate their public authority but restricts where they can act.

• In some provinces, such as Salta, notaries may serve throughout the entire province; however, in Santa Fe, their authority is confined to specific departments.

• A notary's jurisdiction allows them to authorize acts within their designated department while having limited exceptions for neighboring areas under certain conditions (e.g., wills).

• The location of the act's celebration determines territorial competence rather than the residence of involved parties or property location.

Legal Framework and Exceptions

• The law specifies that acts must be conducted within the defined territorial limits set by provincial legislation.

• It is permissible for a notary to formalize transactions involving properties located outside their jurisdiction as long as the act occurs within their authorized area.

Understanding Legal Validity and Signatures

Confusion in Territorial Competence

• The discussion highlights potential confusion regarding the territorial affiliation of localities, which could lead to misunderstandings about their legal jurisdiction. This confusion is considered an excusable error that may not invalidate legal acts.

Role of Judges in Determining Validity

• It is emphasized that judges will ultimately determine whether a locality falls within the appropriate territorial competence for legal matters. Questions are encouraged to clarify any doubts regarding this process.

Requirements for Public Instruments

• A public instrument must be signed by the official and all parties involved, including representatives if applicable. If any required signature is missing, the document lacks validity. This raises discussions on terminology changes from "interested parties" to simply "parties."

Implications of Missing Signatures

• The absence of a signature from a party (e.g., a spouse) does not invalidate the entire document but may limit its effects concerning that individual. The distinction between "parties" and "interested parties" is noted as significant in legal interpretations.

Necessity of Requester’s Signature

• In Santa Fe, it is mandatory for public deeds to include signatures from both the requester and the notary for validity, contrasting with other provinces like Buenos Aires where only the notary's signature may suffice under certain conditions.

Prohibitions on Authorizing Acts

Conflict of Interest Concerns

• Legal instruments authorized by officials who have personal interests (e.g., spouses or relatives) in a matter are deemed null and void due to potential conflicts of interest affecting impartiality in authorization processes.

Manifestation of Vices in Notarial Practice

• The text discusses how manifest vices can complicate notarization when family ties are obscured (e.g., differing surnames), stressing good practice among notaries to clarify relationships during documentation processes.

Inclusion of Cohabitants and Relatives by Affinity

• Recent legal updates now explicitly include cohabitants alongside spouses as individuals whose involvement can affect document validity, addressing previous ambiguities present in earlier codes regarding familial relationships impacting legal actions.

Historical Context and Changes

Validity of Notarial Acts and Public Officials

Discussion on the Validity of Notarial Acts

• The speaker discusses the validity of acts involving relatives in a society, noting that previous provisions allowing notaries to certify such acts have been eliminated, leading to doctrinal debates.

• There is a contention regarding whether notaries can intervene in matters involving legal entities; some argue it is prohibited due to the absence of mention in legislation.

• The speaker aligns with the view that if there is no explicit allowance for intervention by notaries when familial ties are present, then such intervention should be considered unauthorized.

Requirements for Public Officials

• Article 292 outlines that public officials must be effectively in function for their acts to be valid; however, prior acts remain valid even if performed before suspension notification.

• The concept of "investiture" is introduced as an administrative act necessary for public officials to perform their duties legally.

Suspension and Termination of Functions

• The discussion includes scenarios where a notary's functions may be temporarily or permanently suspended due to various reasons like disciplinary actions or personal circumstances (e.g., death).

• It’s emphasized that lack of proper appointment does not invalidate an act if done within good faith parameters, ensuring legal security for individuals interacting with public officials.

Legal Security and Good Faith Principle

• A principle emerges where citizens are not required to verify the legitimacy of a public official's appointment; this protects them under good faith assumptions about official actions.

• Even if a public official lacks formal investiture, their actions can still hold validity under certain conditions, reinforcing the importance of good faith in legal transactions.

Nature and Scope of Public Instruments

• A public instrument is defined as one authorized by an officially recognized agent acting within their jurisdictional limits while adhering to legal requirements.

• Article 293 states that public instruments enjoy full credibility across Argentina, aligning with national constitutional principles regarding legal documents' validity.

Legalization Process Explained

• Despite national recognition of public instruments' validity throughout Argentina, there remains a practical need for legalization when documents require validation outside provincial boundaries.

Legal Validity of Public Instruments

Overview of Public Instrument Validity

• The instrument is considered fully valid across the country as it does not influence the content or affect the public faith value. However, an additional administrative requirement is necessary for legal security.

• When creating a public deed or signature certification for validity in Córdoba, it must be sent to the Notary College, which verifies that the authorization and transaction are correctly executed.

• The verification process does not analyze the document's content but ensures that signatures and seals match those registered with the certifying entity.

International Validity Considerations

• For a document to have validity outside Argentina, it typically requires legalization and adherence to consular validation chains, depending on international agreements.

• Documents with defects such as amendments or alterations in essential parts lack validity unless rectified before required signatures.

Essential Alterations and Nulities

• The Civil Code specifies that any amendments or modifications must be made prior to signing; otherwise, they may lead to nullification of the instrument.

• A judge will determine if an alteration affects an essential part of a document; for instance, changes in price within a sales contract could render it void.

Conversion from Public to Private Instruments

• An instrument lacking proper form can convert into a private instrument if signed by parties involved. This conversion allows for proof of actions taken even without formal public status.

• Two conditions must be met for this conversion: the act must originate from a public official and not violate any formal requirements necessary for validity.

Formal Acts Requiring Specific Conditions

• Certain acts like donations require specific forms under penalty of nullity; failure to comply means no conversion can occur.

• In cases where issues arise affecting instrument validity (e.g., sale contracts), there may still be grounds for initiating judicial action based on converted private instruments.

Witness Requirements in Public Instruments

• The code outlines who cannot serve as witnesses in public instruments, including incapacitated individuals and relatives of officials.

Understanding the Role of Witnesses in Public Instruments

Historical Context of Witness Requirements

• In Vélez, witnesses were historically required for all public writings to verify identities, reflecting societal norms from the early 1800s when identification was less document-based.

• Today, witness requirements have diminished; currently, they are primarily needed for marriages and wills.

Current Legal Framework on Witnesses

• The legal code now mandates only two witnesses for certain documents, down from three previously required for others. The presence of a qualified witness is crucial as it affects the validity of the instrument.

Evidentiary Value of Public Instruments

• Article 296 states that public instruments provide full proof regarding actions taken, including date and location, unless proven false in civil or criminal court.

• Authentic declarations made by public officials cannot be contested without initiating legal proceedings to challenge their veracity.

Distinction Between Authentic and Authenticated Declarations

• Authentic manifestations occur in the presence of a public official who verifies events directly; these carry a higher degree of credibility.

• Authenticated manifestations refer to statements made before an official but not verified by them (e.g., claims about payment during property transactions).

Implications for Parties Involved in Public Instruments

• If a buyer claims possession during a transaction without verification from the official present, this does not hold the same weight as direct observations by that official.

• The distinction between authentic and authenticated declarations impacts how easily one can contest their validity; authenticated statements require less rigorous proof to dispute.

Protection of Public Faith

• According to Article 2907, individuals involved in creating a public instrument cannot contradict its content unless they claim coercion or fraud occurred during its formation.

• This provision safeguards public faith by ensuring that those who participated cannot later deny what transpired under an officially recognized act.

Understanding Public Deeds and Their Validity

Overview of Public Deeds

• The discussion begins with the transition from public instruments to public deeds, highlighting the importance of understanding the requirements outlined in articles 289 to 298.

• Emphasizes that when analyzing the validity of a public deed, one must consider not only the specific articles (99 to 312) but also prior articles related to public instruments, as public deeds are considered the quintessential public instrument.

Key Insights on Legal Framework

• The speaker clarifies that the legislator did not repeat previous regulations regarding public instruments when addressing public deeds; instead, it follows a genus-species relationship where earlier definitions are assumed known.

• An invitation for questions or comments is extended, indicating an openness to discussing practical experiences or cases related to the topic.

Class Participation and Acknowledgments

• The speaker acknowledges participants by name, creating an inclusive environment and ensuring everyone feels recognized during the session.