Escribanía - 06/09 - Parte 1

Introduction and Attendance

Opening Remarks

• The session begins with greetings, confirming that everyone can hear well.

• Attendance is taken, with several participants confirming their presence.

Overview of Notarial Technique

Definition and Importance

• Discussion on notarial technique as a legal practice; the speaker emphasizes its significance in understanding legal processes.

• The concept of "calification" is introduced, where the notary interprets the parties' intentions to determine the appropriate legal act.

Legalization Process

• Legalization involves adapting an act to comply with regulations to ensure its validity.

Understanding Notarial Technique

Distinction Between Techniques

• Notarial technique is categorized under legal techniques: legislative formulation and application of law in conflicts.

Practical Application

• The speaker explains that notarial technique includes operational methods used by notaries for effective professional tasks.

Operational Methods in Notarial Practice

Skills Required

• Emphasis on the need for skillful execution of operations by notaries, utilizing theoretical knowledge and practical experience.

Examples of Application

• The discussion highlights how different approaches can lead to varied outcomes in terms of efficiency and cost-effectiveness during notarization.

Interpreting Client Intentions

Case Studies

• An example illustrates how clients may express desires (e.g., creating a usufruct), which may actually align more closely with other legal actions like donations.

Understanding Notarial Acts and Legalization

The Role of the Notary in Legal Transactions

• The conversation highlights the fundamental nature of notarial acts, emphasizing their elemental role in legal transactions.

• A notary interprets agreements with the consent of involved parties, providing guidance on possible actions and suggesting optimal solutions based on circumstances.

• Legalization is described as adapting a party's will to legal frameworks, ensuring that agreements are valid and enforceable under law.

Capacity and Legitimacy in Notarial Acts

• When a parent sells property to a child, it’s crucial for both parties to confirm their understanding and agreement, especially if there are familial disputes.

• The notary must determine the appropriate legal framework for each transaction to avoid any potential nullity issues.

Practical Application of Notarial Techniques

• Emphasis is placed on applying theoretical knowledge practically; this involves drafting documents accurately while adhering to scientific methods.

• Differentiation between theoretical knowledge and practical skills is essential; techniques should be employed effectively in real-world scenarios.

Legalization Processes Explained

• Two types of legalization are discussed: material (determining the act itself) and formal (choosing the type of document).

• Legitimization requires compatibility between existing situations and desired outcomes; this includes assessing individuals' capacity to engage legally.

Assessing Capacity in Notarial Context

• The notary must evaluate whether individuals possess full legal capacity or if they have restricted capacity due to various factors.

• There’s a delicate balance between recognizing an individual's capabilities without stigmatizing those who may be deemed incapable by others.

Responsibilities Regarding Incapacity

• It’s important for parties involved to declare their full legal capacity when entering contracts, as outlined by relevant articles governing incapacity.

• Specific prohibitions exist regarding conflicts of interest for notaries involving family members or close relations during transactions.

Prohibitions Related to Legal Representation

• Current regulations prevent notaries from acting in cases where personal interests conflict with professional duties, particularly concerning relatives within certain degrees of affinity.

Understanding Property Transactions and Legal Representation

The Role of Ownership in Property Sales

• Emphasizes the importance of confirming that the seller is indeed the owner of the property before proceeding with any transaction.

• Highlights the necessity to examine each case individually, particularly regarding any restrictions on the seller's ability to sell, such as legal prohibitions or conditions tied to previous donations.

Assessing Conditions and Powers of Representatives

• Discusses the need to evaluate whether a representative has sufficient authority to act on behalf of the property owner, referencing organizational statutes and social contracts.

• Warns about associations having more restrictive statutes compared to private companies, which may limit a representative's powers significantly.

Special Powers and Autocontracting

• Notes that powers can be general or specific; it’s crucial to verify if a representative has special powers for selling properties.

• Introduces the concept of "autocontratación," where a power holder may have permission from the principal (poderdante) to engage in transactions involving their own interests.

Material and Formal Competence

• Stresses evaluating both material competence (the nature of what is being transacted) and territorial competence (jurisdictional aspects).

• Explains that notaries must document all acts involved in transactions accurately, ensuring clarity in both parties' agreements.

Authentication and Legal Validity

• Defines authentication as an essential process where notaries confirm actions taken in their presence, emphasizing immediacy for validity.

• References Article 301 which mandates notaries receive declarations directly from all parties involved, reinforcing principles like immediacy for effective authentication.

Configuration and Authorization Processes

• Describes how notaries must qualify elements of an act technically before finalizing it, ensuring compliance with legal standards.

Understanding Legal Instruments and Notarial Acts

The Nature of Public Instruments

• A legal act without a signature is considered a protocol instrument but not a public instrument; the signature and seal of the notary are what transform it into a public document.

• The discussion emphasizes the importance of understanding various legal terms such as qualification, legalization, legitimization, configuration, authentication, and authorization in notarial practice.

Pre-Signing Procedures in Notarial Practice

• Notaries conduct a preliminary hearing to uncover the true intentions of the parties involved and apply the most suitable legal transaction within the established framework.

• Legitimization involves verifying ownership titles to ensure that individuals are rightful owners of properties without any opposing claims.

Certificate Preparation Techniques

• The speaker mentions uncertainty about whether students have learned how to prepare registration certificates during previous classes.

• It is crucial for secretaries to distinguish between different registration systems (matriculation vs. chronological personal), with an emphasis on familiarity with local practices.

Situational Analysis in Property Transactions

• When dealing with property sales by heirs, three scenarios must be distinguished: abbreviated transfer, property transferred to heirs, and partitioned property.

• With new civil codes requiring partitioning for transfers among heirs, prior methods may become obsolete but still need consideration based on existing doctrines.

Documentation Requirements for Abbreviated Transfers

• For abbreviated transactions, it's necessary to request a registration certificate as if selling on behalf of the deceased owner while also obtaining an inhibition certificate from the heir selling.

• Discussions around doctrinal validity arise regarding past practices where properties were transferred via marginal notes rather than formal partitions.

Understanding Post-Signing Obligations

• After establishing ownership through proper documentation processes like certificates of registration or administrative certificates (e.g., tax clearance), it’s essential for buyers' peace of mind.

• The speaker highlights that even though some practices may seem outdated or questionable now, they were once deemed valid under previous regulations.

Administrative Certificates Required Before Signing

• Prior to finalizing transactions, notaries must obtain various administrative certificates including proof of no outstanding debts related to property taxes and municipal fees.

Understanding Real Estate Transactions and Legal Implications

Importance of Legal Clarity in Property Purchases

• The speaker emphasizes that buyers often prioritize whether a property is debt-free over its legal standing, highlighting a common ignorance regarding essential legal aspects.

• There is a concern about the lack of understanding among buyers about who they are purchasing from, which can lead to disastrous transactions involving non-owners.

• It is advised that potential buyers consult with a lawyer or notary to navigate the complexities of real estate purchases effectively.

Consequences of Ignorance in Real Estate

• The speaker notes an alarming trend of increasing ignorance regarding basic concepts in property transactions, such as the distinction between buying and receiving gifts.

• Buyers must be aware of additional considerations when dealing with rural properties, including contributions for road construction and other local requirements.

Rural Property Considerations

• When purchasing rural land, it’s crucial to check for debts related to local committees responsible for infrastructure improvements.

• A specific valuation known as "BIR" (inmobiliaria de referencia) is required for rural properties to ensure fair taxation based on provincial assessments.

Pre-Sale Requirements and Documentation

• Before finalizing any sale, obtaining a cadastral certificate is necessary; this document helps identify the property geographically.

• The speaker recounts challenges faced by lawyers due to jurisdictional differences in procedural rules across provinces, complicating real estate transactions.

Taxation and Compliance Issues

• Attention must be paid to tax certifications like COTI (Certificado de Transferencia de Inmuebles), especially concerning foreign residents.

Understanding Notarial Procedures and Tax Implications

Overview of Taxation on Property Sales

• The discussion begins with the implications of property sales falling under income tax regulations, emphasizing that while the property transfer tax has been eliminated, income tax retention remains crucial.

Pre-Contractual Actions in Notarial Practice

• The speaker highlights the importance of pre-contractual actions that notaries must consider before executing a deed, indicating these are essential steps leading up to the signing.

Post-Contractual Obligations

• After signing a deed, it is necessary for notaries to obtain copies or testimonies of the document and ensure they are registered appropriately.

Registration and Municipal Cadastre Updates

• The process involves registering documents in both municipal and provincial cadastres. Historically, this required multiple physical extracts; now it is streamlined through online systems.

Transition from Physical to Digital Documentation

• The transition from traditional paper-based methods to digital documentation is discussed, noting how historical practices have evolved into current online processes for registration and cadastre updates.

Understanding SRD (Summary of Deed)

• Clarification on SRD as a modern equivalent to previous extract summaries. It includes essential details about parties involved in transactions and property specifics.

Responsibilities Following Deed Signing

• Once a deed is signed, notaries must handle various responsibilities including obtaining copies, registering them, updating municipal cadastres, and ensuring all applicable taxes are paid.

Financial Obligations Related to Property Transactions

• Notaries are responsible for paying any taxes owed related to the property transaction. This includes retaining amounts due during the sale process to clear any debts associated with the property.

Importance of Document Preservation

• Emphasizes that notaries must maintain proper records by conserving protocols and archiving them correctly after transactions are completed.

Clarity in Notarial Communication

Understanding Legal Documentation

Importance of Clarity in Legal Documents

• The speaker emphasizes the necessity for legal documents to be comprehensible not only to signers but also to the general public, highlighting a disconnect with traditional banking forms.

• There is concern that complex clauses in bank documents may obscure their intent, potentially harming both consumers and banks due to lack of clarity.

Crafting Legible Legal Text

• The discussion transitions into the artistry involved in creating legal documents, comparing it to craftsmanship where presentation matters as much as functionality.

• The speaker advocates for using clear formatting techniques such as short sentences, proper punctuation, and headings to enhance readability.

Historical Context and Evolution

• A reference is made to Mario Cini's critique of public instruments from the 1940s, noting that past legal writings were often nearly illegible.

• Emphasis is placed on organizing legal writing clearly with appropriate punctuation and structure to ensure understanding.

Precision in Notarial Acts

• The importance of accurately reflecting what parties state during notarial acts is discussed; only actions witnessed by the notary should be covered under public faith.

• Misinterpretations can arise when notaries make judgments about a party's capacity instead of simply documenting observed actions.

Avoiding Ambiguity in Transactions

• The speaker warns against vague language in transactions; specifics about how money is exchanged must be clearly stated to avoid confusion.

Critiques of Public Writing

Historical Context of Notarial Practices

• Mario discusses the evolution of public writing, highlighting that older notaries lacked formal training and resources to create clear documents.

• He explains that traditional deeds often began with vague statements about property sales, lacking clarity in ownership justification and tax status.

• The complexity of old writings is emphasized, noting their long sentences without punctuation, making them difficult to understand for modern readers.

Modernizing Notarial Models

• Mario proposes a new model for writing deeds that incorporates clearer structures while acknowledging that it doesn't have to be strictly followed.

• He references Article 305 of the code, which outlines essential components required in public deeds such as date, parties' identification, and nature of the act.

Legal Requirements in Deeds

• The importance of including specific details like property description and tax payment status is stressed as critical for legal validity.

• Mario highlights additional requirements from the Organic Law regarding deed content, including sequential numbering and personal details like age and nationality.

Practical Application in Drafting Deeds

• Discussion shifts towards practical aspects such as incorporating cadastral information into deeds to establish property ownership clearly.

• Emphasis on the necessity for notaries to reference registered testimonies when drafting deeds is reiterated.

Structuring a Deed: Key Components

• Mario outlines how to format a deed starting with a header (membrete), indicating its type (e.g., sale), followed by essential identifying information.

Understanding the Structure of Legal Documents

Personal Approach to Legal Writing

• The speaker emphasizes a personal approach to legal writing, noting that individual preferences influence how documents are crafted. Artistic and artisanal elements play a role in this process.

Framework for Document Creation

• The speaker outlines a structured framework for drafting legal documents, starting with all relevant details about the act being documented. This includes initial and final situations surrounding the behavior or event.

Importance of Contextual Background

• It is crucial to provide context by recounting the history leading up to the act. Understanding what happened before is essential for clarity in legal documentation.

Clarity in Reporting Events

• In reporting events, such as a sale, it’s important to clearly state who is involved, what is being sold, and under what conditions. Specificity helps avoid ambiguity.

Handling Complex Pricing Structures

• When dealing with complex pricing (e.g., mixed currencies), it's advisable to present these details after stating the basic transaction facts. This ensures clarity without overwhelming the reader initially.

Detailed Breakdown of Transaction Elements

Structuring Sale Agreements

• The speaker discusses structuring sale agreements by first identifying parties involved and then detailing payment methods. This logical flow aids comprehension.

Documentation of Payment Methods

• It's important to document how payments are made—whether upfront or through installments—to ensure transparency and reduce disputes later on.

Emphasizing Possession Transfer

• The transfer of possession must be clearly articulated within the document. This includes specifying rights transferred from seller to buyer during transactions.

Critiques of Traditional Legal Language

Limitations of Old Formulas

• Traditional phrases used in legal documents often fail to adequately convey ownership transfer, which can lead to misunderstandings regarding property rights.

Need for Clearer Ownership Transfer Language

• There’s an emphasis on needing clearer language that justifies ownership transfer upon completion of sales, addressing potential issues like embargoes against sellers.

Innovative Approaches in Legal Education

Shifting Burden of Proof

Understanding the Burden of Proof in Property Transactions

Inverting the Burden of Proof

• The speaker discusses a method where the burden of proof is inverted, requiring the buyer to assert possession due to receiving property through tradition.

• This approach aims to validate public declarations regarding property transfers, despite challenges in physically verifying these transactions today.

Challenges in Verifying Property Transfers

• The speaker highlights that while traditional methods involve notaries confirming property transfers on-site, this is often impractical in modern contexts.

• By shifting the burden of proof, sellers must demonstrate that a transfer did not occur if contested, thus protecting buyers' claims.

Real-Life Application and Adaptation

• An example is provided where a buyer knowingly purchases an occupied property; here, the seller must affirm their rights without misrepresenting possession.

• The necessity for adaptability in notarization practices is emphasized, as each case may require tailored approaches based on specific circumstances.

Structuring Notarial Acts

• The speaker critiques existing models (e.g., Buenos Aires), advocating for logical structuring where all acts are presented upfront rather than relegated to later sections.

• Emphasizing clarity and completeness in documentation ensures no critical information is overlooked during transactions.

Importance of Clear Documentation

• The need for clear statements about parties’ legal capacities and agreements (like spousal consent) at the beginning of documents is stressed for better understanding.

• A practical example illustrates how buyers often lack knowledge about regulations; hence, it’s more effective to state adherence without assuming prior knowledge.

Equitable Treatment in Transactions

• When dealing with familial transactions (e.g., gifts between relatives), it's crucial to document acknowledgments from involved parties regarding equivalent value received.

• All relevant declarations should be included early in documentation to ensure transparency and fairness throughout the transaction process.

Finalizing Notarial Records

• Concluding remarks focus on ensuring all personal data required by law is accurately recorded within notarial acts for compliance purposes.

• Proper identification procedures are outlined as essential steps before finalizing any transaction records.

Justification of Ownership in Sales Transactions

Understanding Ownership Transfer

• The speaker discusses the justification for how a seller becomes the owner of an item, indicating a need for clarity in ownership transfer.

• A simplified example is provided: ownership is attributed to an individual based on a purchase made from another party, emphasizing the importance of clear documentation.

• The necessity of specifying details such as the date and notary involved in the transaction is highlighted; without this information, further investigation into ownership claims becomes complicated.

• The speaker notes that while this discussion does not cover comprehensive title studies, it is essential to provide enough detail to establish legitimacy in ownership claims.

• It’s important to indicate whether the ownership remains valid or has been exhausted; this distinction helps clarify current rights over the property.

Succession and Inheritance Considerations

• When discussing inheritance, it's crucial to document any succession proceedings accurately, including court details and dates related to heir declarations.

• If one heir sells their share to another, this transaction must also be documented with specific details about the sale agreement.

Practical Application and Engagement