Escribanía - 24/05 - Parte 1

Introduction and Technical Issues

Initial Setup

• The session begins with some technical difficulties, as participants are trying to ensure that the recording is functioning properly. There is uncertainty about whether the meeting is being recorded.

Attendance Check

• The facilitator starts taking attendance, confirming who is present in the meeting. Participants respond affirmatively as their names are called out. This includes Virginia, Carolina, and others.

Discussion on Public and Private Instruments

Overview of Instruments

• The discussion shifts towards public and private instruments, focusing on articles relevant to these topics. It’s noted that some articles will be revisited when discussing public writing specifically.

Characteristics of Public Instruments

• A key point made is that public instruments are characterized by the involvement of a public official or authority in their creation, which gives them legal standing under civil law. This distinction between documents based on their origin (official vs non-official) is emphasized.

Legal Validity Across Jurisdictions

Article 293 Insights

• Article 293 states that public instruments created according to the code have full faith and produce identical effects throughout the Republic, regardless of where they were issued. This article's relevance was discussed concerning its constitutional backing regarding inter-provincial validity of such documents.

Historical Context

• The facilitator provides historical context for Article 293, explaining its purpose in addressing jurisdictional defenses that imposed excessive requirements for document validity across provinces—particularly concerning property transfers and registrations.

Registration Laws and Local Practices

Provincial Registration Requirements

Legal Framework for Foreign Real Estate Contracts

Overview of Legal Requirements

• Discussion on the necessity of fiscal intervention for the protocolization of public instruments as per Article 671 of the Civil Procedure Code.

• Reference to Article 1211 from the old Civil Code, which states that contracts made abroad for transferring real rights over properties in Argentina hold equal validity as those executed within the state.

Recognition of Foreign Instruments

• Emphasis on international private law recognizing public instruments from other countries, provided they are legalized and meet specific criteria.

• Clarification that legal transfer (tradition) of foreign contracts cannot have legal effects until they are protocolized by a competent judge.

Protocolization Process

• The judge's role includes ensuring documents are in the national language and may require translation if necessary.

• Importance of compliance with public order and tax obligations before a judge can authorize protocolization.

Simplifications in New Code

• Introduction to new code provisions simplifying previous processes, including a dedicated section on international private law.

• Article 2667 reiterates that rights over real estate are governed by local laws, maintaining similar principles to those in the old code regarding foreign contracts.

Challenges with Public Instruments

• Requirement for foreign instruments to be public and legalized remains consistent; however, practical challenges arise with U.S. documents due to differing legal systems.

• Discussion on how formalities required by Argentine law must align with those where acts were performed (locus reg actum).

Conclusion on Legal Practice Implications

• Highlighting common issues faced by practitioners regarding adherence to international private law norms when dealing with foreign property transactions.

Understanding the New Article 2667

Overview of Article 2667 Requirements

• The new Article 2667 mandates that certain powers must be documented in public instruments and legalized, emphasizing a critical perspective on these requirements.

• Unlike previous regulations, it no longer requires presentation before a judge; instead, documentation is to be handled by a notary who ensures compliance with national language and basic property-related issues.

Role of Notaries and Registration Process

• The obligation for judicial presentation has been removed, allowing for simpler processing through notarial procedures.

• Article 295 outlines who can serve as witnesses in public instruments, excluding individuals such as those incapable of exercising their rights or those barred by court rulings.

Witness Eligibility Under Article 295

Criteria for Witnesses

• Individuals unable to sign or those related to the official within four degrees are disqualified from being witnesses.

• The article clarifies that common errors regarding witness eligibility do not invalidate the documents they sign.

Historical Context and Changes

• Historically, there was a strict division between capable and incapable persons; now there's recognition of relative incapacity based on specific acts.

• Issues may arise if someone conceals their relationship with an official or their incapacity status during witnessing.

Implications of Common Errors

Understanding Common Errors in Witnessing

• The discussion highlights how common errors primarily relate to incapacity rather than other factors affecting witness validity.

• An example illustrates potential scenarios where individuals might appear as witnesses despite having undisclosed relationships with officials.

Importance of Public Instruments

• Public instruments are surrounded by formalities designed to protect citizens' rights while ensuring rigorous adherence to legal standards.

• These formalities aim to provide guarantees for citizens, reinforcing the protective nature of public documentation.

Notarial Acts and Their Validity

Conditions Affecting Notarial Acts

• A notary's capacity is crucial; however, if they become incapacitated during their duties without detection, this does not nullify prior acts unless severe incompetence is evident.

• If a notary fails to meet necessary qualifications at appointment but operates under legitimate appearance, this does not affect the validity of their actions.

Principles Governing Public Instruments

Legal Concepts and Historical Context in Notarial Acts

The Right to Conservation of Acts

• Discussion on the right to conserve acts, emphasizing that it should not be harmful to anyone involved.

Testimony and Legal Capacity

• Importance of knowing if a person has been declared incapable or barred from being a witness in public instruments due to prior convictions.

Evolution of Witness Requirements

• Historical context regarding the original requirement for two instrumental witnesses in all deeds, reflecting societal norms of the time.

• The transition away from mandatory instrumental witnesses around 1950 or 1960 due to practical issues with their role.

Current Witness Regulations

• Clarification that while the presence of witnesses is no longer obligatory, it can still be requested by parties or notaries if deemed useful.

• Explanation of "testigos de conocimiento" (knowledge witnesses), which were previously required for identity verification but are no longer mandated under current law.

Efficacy and Presumptions in Public Instruments

• Introduction to Article 296, highlighting the probative efficacy of public instruments as definitive proof until proven otherwise.

• Emphasis on how public instruments assert facts about actions taken, dates, locations, and declarations made by officials.

Legal Fiction and Stability

• Discussion on legal fictions such as presuming adults understand their actions while minors do not; this serves as a foundation for legal stability.

Role of Public Instruments in Legal Conflicts

• Overview of how legal regulations often focus on conflict resolution while many obligations are fulfilled without judicial intervention.

Importance of Public Faith

• Explanation that public faith allows individuals to assert rights without needing constant proof through disputes over validity.

• The principle of immediacy is crucial; statements made by notaries are accepted as valid unless proven false.

Legal Validity of Public Instruments

Overview of Public Instrument Validity

• The validity of public instruments is maintained until proven false; statements made by a public notary are considered valid unless declared otherwise.

• Distinction between the factual content of declarations and their veracity; for instance, if a buyer claims payment was made in a sale, that statement is indisputable but its truth can be challenged.

• The doctrine differentiates between direct assertions and those concerning facts relevant to other parties, affecting how veracity is covered under public faith.

Authenticity and Verification

• Authentic declarations are those confirmed by the notary's presence; however, personal assertions about ownership or funding may not be protected under public faith.

• Article 297 emphasizes that witnesses and the authorizing official cannot contradict or alter the content of a public instrument unless they claim coercion or fraud occurred during its creation.

Legal Implications of Contradictions

• The inability to contradict prior statements ensures clarity regarding when individuals spoke truthfully about the instrument's validity.

• Article 298 discusses "contradocumentos," which can modify what’s stated in a public instrument but remain unenforceable against third parties acting in good faith.

Understanding Private Instruments

Transition to Private Instruments

• Discussion shifts from public instruments to private ones, necessitating an understanding of general legal acts as outlined in previous sections.

Freedom and Requirements for Form

• Article 284 states that if no specific form is mandated by law, parties may choose any format for their agreement.

• Article 285 clarifies that failure to adhere to required forms results in an incomplete act unless it meets certain conditions set forth by law.

Nulidad (Nullity)

• There’s ongoing debate regarding acts lacking legal formality; some argue these should be deemed null while others suggest they simply lack enforceability until formalized.

Understanding Legal Instruments and Signatures

The Nature of Contracts and Nullity

• Discussion on the assumption that parties would have acted differently had they foreseen the nullity of a contract. Reference to an article by a doctor that aligns with Mario's views.

Signing Contracts: Intent vs. Obligation

• When parties sign a purchase agreement, their primary focus is on the transaction rather than realizing they are entering into an obligation. The contract is deemed null due to lack of compliance with legal transfer requirements.

Definition of Private and Particular Instruments

• Article 286 states that written expressions can be in public or private instruments, signed or unsigned, unless specific formalities are mandated.

Acceptability of Electronic Documents

• Emphasis on the importance of intelligible text representation in any medium, including electronic documents, as per legal standards.

Distinction Between Private and Particular Instruments

• Article 287 clarifies that private instruments may be signed or unsigned; unsigned ones are categorized as particular instruments. This includes various forms such as printed materials and audio/visual records.

Importance of Signature in Legal Documents

• Article 288 highlights that signatures validate authorship and intent within legal declarations. Historical context provided regarding signature validity even if not fully complete.

Understanding Signature Validity

• The necessity for signatures to reflect the signer's name emphasizes their role in expressing consent to document content, distinguishing between acceptance and content acknowledgment.

Provisions for Non-Signers in Private Instruments

• Article 313 allows for alternatives like digital impressions or witness presence when a signer cannot sign, though this has faced criticism regarding its implications for authenticity.

Critique of Digital Impressions as Signatures

• Concerns raised about equating digital impressions with traditional signatures; historical leniency from commercial codes noted but criticized for potential risks involving illiteracy or misunderstanding by signers.

Recognition of Signatures: Authenticity Challenges

Understanding Legal Signatures and Their Implications

The Role of Omission in Legal Declarations

• Discussion on how legal declarations can arise from actions, events, or omissions, emphasizing the obligation to express oneself when required by law.

Authenticity of Signatures

• In a judicial context, individuals must confirm whether a signature on a private document belongs to them; failure to do so leads to further verification processes.

• The new code allows for the authenticity of signatures to be proven by any means, expanding the methods available for establishing signature validity.

Recognition and Indivisibility of Evidence

• Recognizing a signature also acknowledges the entire content of the private instrument; once recognized, it cannot be contested except under specific circumstances.

• The indivisible nature of evidence implies that if one part is valid for one party, it is valid for all involved parties.

Certification and Legal Standing

• The current legal framework grants significance to certified signatures by notaries, which was absent in previous civil codes. This change reflects modern practices regarding signature certification.

Digital Impressions as Evidence

• Documents signed with digital impressions are considered as written proof but do not equate to being formally signed; this distinction affects their legal standing.

Distinction Between Private and Particular Instruments

• Instruments lacking traditional signatures may be classified differently (as particular instruments), affecting their evidentiary value under different articles (1020 vs. 319).

Judicial Evaluation Criteria

Understanding Legal Instruments and Signatures

The Role of Digital Signatures in Legal Documents

• Discussion on the validity of documents signed with digital impressions, which are considered as written proof but can be contested.

• Critique of the legal framework's failure to address the evidentiary value of documents requiring two witnesses alongside digital signatures.

Challenges with Blank Signed Documents

• Explanation that a signer can contest the content of a blank document if it does not align with their instructions, but cannot use witness testimony without written proof.

• Clarification that third parties acting in good faith are protected when a blank document is misused against the will of its signer.

Distinctions in Handling Blank Documents

• Overview of how existing laws differentiate between misuse by authorized individuals versus theft, emphasizing protection for good faith third parties.

• Affirmation that blank signed instruments are valid and can be challenged by signers if their intent was violated while safeguarding third-party rights.

Notarial Certification and Its Implications

• Discussion on whether notaries can certify blank signatures; some argue this could lead to complicity in potential fraud.

• Conclusion reached that notarization of blank signatures is permissible as long as it is clearly documented that the document is entirely or partially blank.

Practical Considerations and Real-Life Applications

• Insight into how notarization helps establish proof that a document was indeed signed while blank, protecting both signers and third parties involved.

• Commentary on the rarity of signing completely blank documents today, though exceptions exist (e.g., trusted family members completing forms).

Common Practices Involving Blank Forms

• Acknowledgment that people frequently sign various forms without fully understanding their contents, often underestimating potential risks associated with such practices.

• Reflection on everyday scenarios where individuals unknowingly sign incomplete documents, highlighting a disconnect between practice and awareness.

Understanding Amendments in Private Documents

Introduction to Amendments

• The discussion introduces a new aspect of the code regarding amendments in private documents, which was not previously addressed.

• Emphasizes the significance of amendments, noting that with modern computing, correcting errors is easier than it was when documents were handwritten or typed.

Historical Context and Challenges

• Historically, making corrections in long instruments posed significant challenges; an error near the end could complicate the entire document.

• In public instruments, corrections were made at the end of the text, but this practice also applied to private instruments.

New Regulations on Amendments

• The current article specifies that any essential parts affected by amendments must be signed by all parties involved; otherwise, a judge will determine how much this affects the document's evidentiary power.

• It suggests that salvaged amendments should be documented separately and signed distinctly from the original instrument.

Judicial Considerations

• The importance of judicial discretion is highlighted; judges will assess how these salvaged amendments impact legal validity.

Probative Value and Date Certainty

Article 317: Probative Efficacy

• Article 317 discusses that recognized private instruments have probative efficacy extending to third parties from their established date.

• Highlights differences between public and private instruments regarding signature recognition and date validation.

Importance of Dates in Law

• Stresses that dates are crucial in law as they can influence rights and privileges; "first in time is best in law."

Differences Between Public and Private Instruments

Recognition Issues

• Discusses how previous codes outlined specific cases for establishing date certainty for documents but now focuses on situational contexts where signing may not have occurred before certain events.

Correspondence as Evidence

Article 318: Communication Methods

• Article 318 states that correspondence can serve as evidence regardless of transmission method (e.g., email or WhatsApp).

Legal Framework for Notarial Practices

Protection of Private Papers

• The National Institution emphasizes that private papers are protected and cannot be accessed without a judicial order, highlighting the legal framework surrounding notarial practices.

Certification of Correspondence

• Article 10 of Law 6898 allows notaries to certify the sending of correspondence, which includes various types beyond just emissive letters. This certification is crucial for establishing proof in legal contexts.

Notary's Role in Sending Correspondence

• Notaries are responsible for sending correspondence on behalf of clients. They maintain a copy in their protocol as evidence that the letter was sent, ensuring accountability and traceability.

Digital Evidence and Notarial Proof

• With advancements in digital communication, notarization processes have adapted to include electronic means. However, care must be taken to ensure proper verification by an expert when dealing with digital correspondence.

Legal Value of Private Instruments

• The value of private instruments is determined by judges based on criteria such as consistency between events and narratives, technical clarity, customary practices, and reliability of the methods used.

Confidentiality in Electronic Communication

Understanding Confidentiality

• A discussion arises regarding what constitutes confidentiality in electronic communications. Questions focus on how confidentiality is defined legally and its implications during litigation.

Judicial Interpretation of Confidentiality

• The interpretation of confidentiality can vary; it often depends on context and circumstances. Judges will ultimately decide whether to accept confidential communications as evidence based on established norms.

Common Misconceptions about Confidentiality

• Many assume that stating a message is "confidential" automatically grants it protection; however, this may not hold up under scrutiny if deemed routine or non-sensitive by a judge.

Examples from Banking Communications

• Everyday communications from banks labeled as confidential may lack true protective value unless they contain sensitive information relevant to professional obligations or client relationships.

Professional Secrecy vs. General Confidentiality

Understanding the Impact of Climate Change

Introduction to Climate Change

• The speaker introduces climate change as a pressing global issue, emphasizing its widespread effects on ecosystems and human societies.

• A brief overview of the scientific consensus regarding climate change is presented, highlighting the role of greenhouse gases in global warming.

• The importance of addressing climate change through international cooperation and policy changes is underscored.

Effects on Ecosystems

• Discussion on how rising temperatures are affecting biodiversity, with specific examples of species at risk due to habitat loss.

• The impact of climate change on oceanic systems, including coral bleaching and shifts in marine life distribution.

• Mention of altered weather patterns leading to increased frequency and severity of natural disasters.

Human Implications

• Examination of how climate change affects food security, particularly in vulnerable regions reliant on agriculture.

• Insights into health risks associated with climate change, such as heat-related illnesses and respiratory issues from pollution.

• Discussion about economic impacts, including job losses in traditional industries and the need for green jobs.

Mitigation Strategies

• Overview of renewable energy sources as viable alternatives to fossil fuels for reducing carbon emissions.

• Emphasis on the role of individual actions alongside governmental policies in combating climate change effectively.

• Call for innovation in technology to enhance sustainability practices across various sectors.

Conclusion: A Collective Responsibility

• The speaker concludes by stressing that tackling climate change requires collective action from individuals, communities, governments, and organizations worldwide.