Notarial acts

Notarial acts

According to Article 198 of the Notarial Regulation, "notaries, at the behest of a party… shall draw up and notarise acts recording the events and circumstances they witness or are known to them and which, given their nature, do not form the substance of a contract".

Notarial acts thus cover events, unlike other notarial documents, such as public instruments and policies, that record contracts. "The content of notarial acts comprises the confirmation of events or the perception thereof by the notary, provided that given their nature they could not be classified as acts and contracts, in addition to judgments and classifications" (Article 144 of the Notarial Regulation).

This means that in such acts the notary simply bears witness to the events perceived through his senses, as well as others that may not be directly perceived by the senses but that the notary may deem to have been accredited following the relevant evidence, as with acts of evidence. However, acts may not under any circumstance cover contracts, for which notarial public instruments and policies are required, with much more extensive notarial intervention.

The value of a notarial act lies in the fact that it provides incontrovertible proof of the event comprising its object, which cannot be disputed even in court, except by filing a suit of falsehood. This is particularly useful, as it allows a citizen to pre-establish evidence of events that will probably be subsequently argued in court, in administrative or private proceedings, when these events could perhaps no longer be repeated or proven because their effects no longer exist, whether these are declarations, notifications, the existence of objects, documents (including electronic documents) or people.

However, although the notarisation of such documents is more flexible than with public instruments or policies, they are subject to certain limits. The following will, then, be required: a legitimate interest on the part of the party calling for the act (some sufficient reason to become involved in the legal sphere of others); the conduct requested of the notary must in itself be legal (it must entail no violation of privacy, own image or the domicile of others, for example); it must not encroach on court or official spheres (for example, a demand cannot be made of the public authorities, which already have their channels in place for this purpose, nor may declarations corresponding to the sphere of criminal law be recorded); the notarial action must not be by surprise (e.g., the notary must inform the party receiving the demand of his notarial status, the object of his presence, and is right to reply); the act must not contain considerations that would require expert witness knowledge that a notary need not have. In any event, the actions of the notary must be impartial, since while he must set down the individual interest of the requiring party, he must not overlook any part of the confirmed truth nor record realities that would clearly give rise to confusion.

The act, being a public document, is held in the protocol of the notary who notarised it, and copies thereof may be requested not only by the party commissioning it, but any other person who might have a legitimate interest in learning of its contents, as well, of course, as court authorities if it would in any way be involved in criminal matters.

According to Article 199 of the Notarial Regulation: Notarial acts of presence accredit the reality or truth of the event giving rise to their notarisation.

The content of the act is confined to the events witnessed by the notary, without requiring on his part any technical knowledge inherent in expert witness evidence. This type of act includes such sub-categories as presentation of objects, handovers or existence of a person…

In this type of act, the notary records the declarations given by a person. The act does not, of course, accredit the accuracy of said declarations, but the fact that a particular person made those declarations at a particular time. What is accredited in this type of act is, then, not the content of the declaration, but the declaration as such (the fact of utterance), the declaring party being required to assume the effects of his declaration, of which the notary will duly advise him.

According to Article 201 of the Notarial Regulation: The simple fact of sending letters or other documents by ordinary mail, a remote electronic procedure, fax or some other suitable means may be confirmed by means of an act, accrediting the content of the letter or document and, depending on the means employed, the date of delivery, or of dispatch by an appropriate technical procedure and, where applicable, the issuance of the corresponding receipt of placement as a certificate, delivery or dispatch, and receipt by the notary of the confirmation of receipt or of the document or notification of receipt.

They serve to accredit the content and date of delivery of letters or other documents.

Article 202 of the Notarial Regulation: The object of acts of notification is to serve information or a decision on a person, requesting notarial intervention, while acts of demand also call on the recipient to act in a particular manner.

Acts of notification inform a person of information or a decision issued by the party requesting the notarial service, while acts of demand call on the recipient to act in a particular manner, such as for example by paying a specific debt. The notary may serve the notification or demand in two ways: either by serving a warrant of notification or a demand via registered mail with confirmation of receipt, or otherwise by appearing in person at the stated address. This act serves to provide confirmation that a person has received information or a request issued by another.

Article 207 of the Notarial Regulation: In acts of presentation of things, the notary will describe or relate the identifying circumstances, a distinction being made between his perception and the statements given by expert witnesses or other persons present at the event, and may supplement the description by means of plans, designs, certificates, photographs or photocopies included within the original instrument. In acts of presentation of documents, he will furthermore transcribe or relate the documents or specify their narrative in accordance with certain circumstances indicated by the requiring party.

The notary describes and identifies in an act a particular object at a particular moment in time. Plans, designs, photographs, photocopies or personal declarations may form the object of this. In an act of presentation of documents, the notary must transcribe or summarise the content.

Article 209 of the Notarial Regulation: The purpose of acts of evidence is to confirm and establish evident circumstances on which rights may be based and declared and personal or asset situations legitimated, with legal significance.

They serve to confirm certain events not because they can be directly perceived but because they are clearly evident and may form the basis of rights. The notary will perform the relevant tests in order to accredit the veracity of the circumstances and will issue a judgment as to whether or not the situation requested is evident or not: this public confirmation covers the events recorded in the act, but not the judgment of the notary, which may be mistaken. However, such acts are useful because they generate a presumption of truthfulness.

One example would be intestate acts in which the notary identifies the heirs of a person who died without leaving a will.

Article 211 of the Notarial Regulation: Acts of protocolisation will have the same general characteristics as acts of presence, although the text will relate the fact of examination by the notary of the document to be included in the protocol, the declaration of will of the party requiring the protocolisation or fulfilment of the judgment ordering it, with the dossier included in the protocol, stating the number of pages it contains and the associated withdrawals.

Public or private documents are incorporated with such acts in the notarial protocol, to prevent their loss, demonstrate their existence or their date, or to achieve future copies. In the case of contracts, the tax requirements must been fulfilled in order to prevent the period of limitation for payment of the tax from beginning upon presentation to the notary, while it will also be placed on record that inclusion within the protocol does not have the same effect as a notarial public instrument.

Article 216 of the Notarial Regulation: Notaries may receive by deposit objects, valuables, documents and amounts entrusted to them, either as a pledge for contracts, or for their safekeeping.

The notary receives objects, valuables, computer files, documents or amounts in cash by deposit. The deposit may be entrusted for safekeeping or as the guarantee for a contract, and must specify the conditions of return. Any deposit must be first examined by the notary, to verify that the deposit does not comprise a violation of any regulation.

In the case of a public auction, the organisers present any lawful conditions they might deem appropriate to the notary: description of the asset or right to be auction; type of auction; the deposit required to participate; procedure; periods; location, date and time; locations where it is to be announced; duration…

These record the winners of a prize, in accordance with a random selection and the previously announced terms. The website of the General Council of the Notariat allows companies to publish the terms and conditions for their competitions in the Ábaco Archive

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