Wednesday, June 11, 2008
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PRACTICE REGISTRY:
LAND REGISTRY. MOTIVATION AND LEGAL CONSEQUENCES OF THE JUDGEMENT OF REGULATION PART annulling ATTORNEY.
(JDR) in June 2008.
ruling by the Supreme Court on May 20, two thousand eight, relapse 63/07 administrative appeal against Royal Decree 45/2007 of 19 January, amending Regulation of the organization and governance of Notaries, have been canceled several articles or paragraphs of that regulation.
This work is not very important to analyze the impact that the sentence is in the configuration of the notarial profession in Spain, but simply outline the main legal reasons why the Supreme Court has nullified the statutory provisions relating to judicial review by the notary , and discuss some practical consequences that affect the specific registration qualification of notarial documents.
A. - MAIN REASONS FOR THE JUDGEMENT OF PARAGRAPHS OR CANCEL TS RULES OF PROCEDURE FOR THE CONTROL OF ATTORNEY LEGALITY OF THE NOTARY, DENIAL OF AUTHORIZATION DOCUMENT FOR SUCH PURPOSE, AND SUCH APPEAL AGAINST REFUSAL.
STATEMENT:
1 .- LEGAL CONTROL OF ATTORNEY CAN ONLY BE A STANDARD ESTABLISHED BY LAW WITH THE RANK ASSIGNED AND THE APPLICABLE LAW OF NOTARIES MAKES NO SUCH THING.
TS acknowledges that it has to decide "on the legal viability or the expediency of establishing a judicial review by notaries." But it says its establishment "has to respond to the will of the legislature expressed in the appropriate standard for legal status." E
interprets and declares that the present Articles notarial law sets no such thing, but when discussing the notarial examination of "the legality of granting" refer to "the giving of faith by the notary that the grant has taken place in circumstances that expresses the art . 193, made reservations and legal notices referred to in art. 194 and signed the deed in the manner provided for in art. 195, after which the document authorizing the notary. "
2 .- IF ANY UNFAVORABLE TRIAL ON LEGALITY OF NOTARY HAS NO LEGAL UNDER STATUTORY LEVY THAT THIS IS THE RESULT OF THE REJECTION OF YOUR AUTHORIZATION OR INTERVENTION.
This, "because of the importance that the denial may have the rights and legal entitlements of a patrimonial nature of stakeholders, as depriving them of public documents (arts. 1278 and 1279 CC) and the corresponding security and efficiency that derives from it (art. 1218 CC) and possibilities of negotiating such Warranty provided, and the subsequent protection by registration, even if provisional and temporary, providing access to the register by the corresponding entry of presentation, starting with the possible. rectification and the consequent effects of tai priority (Art. 17.18, 24, 25, 32 LH, arts. 1473 second paragraph 1526, second paragraph of CC, etc), to name the most prominent aspects. "
He added: "These effects are projected onto the right of property, committed much of the legal acts or business in question, affecting the acquisition, conservation and efficiency, therefore matter is to be understood subject to legal reserve as appears from the art. 33.2 of the Constitution in relation to art. 53.1 thereof, then affects substantive aspects of the exercise and scope of the law. " Therefore
TS estimates that "lack a specific statutory power to establish regulations allowing the refusal of permission or intervention of attorney as a result of unfavorable opinion of legality.
As is clear from what has been said before, it can not be found in those arts. 17bis and 24 of the Notaries Act, despite its recent amendment by the laws 24/2001 and 36/2006, which does not even serve to justify under control of lawfulness in terms that are the statutory provision as has been reasoned before and contain any provision on the possibility of refusal by the notary of his ministry and the review of any decision to that effect. "
adds that "the legislator, when establishing specific limitations on access to the notarization of legal acts or business has come to arrangements with force of law, as the appellant, such is the case, inter alia, Art. 10.6 of Law 26/1984 of 19 July, General Counsel for the Defence of Consumers and Users, which prevents the authorization by the Notary of those contracts or deals in which it is intended to include clauses declared void by abusive Judgement entered in the register of the General Conditions, the art. 4.4 of Law 42/1998 of 15 December on the timeshare rights of property for tourist use, according to which notaries can not authorize a deed governing a timeshare scheme, while not stating the compliance with the requirements in paragraphs 1 and 2 of the provision itself, the art. 20 of Law 38/1999 of November 5, Building Management, which prevents the approval of deeds of declaration of new work without proving the constitution of the guarantees established in the art. 19 of the Act, or the art. 25.5 of Law 42/2003 of November 21, Forestry, which prevents the notary deed authorizing acquisition without first proving the actual notification to the Administration, which requires that provision. 3 .-
POSSIBLE REVISION OF THE NEGATIVE TO AUTHORIZE THE NOTARY DOCUMENT IS SUBJECT ALSO SUBJECT TO LAW.
The TS also overrides the paragraph on to "review the denial of authorization or intervention of attorney", as that regulation "goes beyond the regulatory scope to be subject to legal reserve (section 105.c, CE)."
4 .- CONSEQUENTLY, ALSO CANCELS OTHER PARAGRAPHS or precepts referring to a LEGAL CONTROL OF ATTORNEY, AUTHORIZATION OR DENIAL Therefore, the TS has deemed illegal. After
cancel much of the art 154 of the Notarial Regulation, also cancels other ends or items that are based on "the concept of judicial review and therefore attorney refusing permission as set out in art. 145 of the Regulation itself we considered illegal, but may invoke the provisions of paragraph preceding it invokes as art. 17bis of the Law on Notaries, because when considering the challenge of that art. 145 we have already stated what is the scope of the legal principle that coverage does not serve the statutory provision. "
IMPACT OF JUDGEMENT IN PRACTICE REGISTRY.
ISSUES.
In each case, is the text of the article, deleting it annulled by the Supreme Court, outlines the reasons for cancellation to the following statement, and concludes with a commentary on its practical consequences JDR
1. Is it necessary for the granting English expressly show what their civilian neighborhood? Should accredited?
Article 161. Regarding English nationality and identity is proof that a passport or national identity and the vicinity of the place of issue, unless you state otherwise the person
TS Reason "as a form of accreditation includes neighborhood civil, for the place of execution, unless you state otherwise the person concerned, the regulations establishing a presumption of truth of such a civilian neighborhood which is inconsistent with the regulation of the acquisition thereof, provided for in art. 14 of the Civil Code "
"Presumption of connection instead of granting the public document to the accreditation of a particular regional citizenship is contrary to the provisions of art. 14 of the Civil Code, which relates one to forms of acquisition of a specific civilian neighborhood, which is not the mere expression of interest, which determines the annulment of the provision in the clause being challenged. "
practical consequences, as JDR:
According to TS, civil residence must be expressed in any event, and also accredited. Possible
media accreditation: a.
- a statement supported by the concerned trial attorney for visibility that point.
b. - Certification of Civil Registry, where it has been expressly stated to the civil registry will acquire the residence of 2 years, or to retain the former despite new residence of 10 years.
2 .- How to be expressed and if credited the conventional matrimonial?
Article 159.
The circumstances concerning the status of each respondent shall be expressed by saying if you are single, married, legally separated, widowed or divorced.
also may be included at the request of stakeholders union status or de facto separation.
If the grantor is married, legally separated or divorced, and the act or contract would affect or could affect future financial consequences of their current marriage or in your case, above, shall include the name of the spouse who affects or could affect, as well as matrimonial property.
The circumstances referred to in this article shall be recorded by the notary so that resulting from the manifestations of those appearing.
be expressed in any event, the economic regime of marriage not legally separated. Though the statement of sufficient legal grantor. Established if the marriage is sufficient for all legal purposes, be credited to the notary certificate was granted as true. The notary deed of capitulation will identify and, where appropriate, their registration record, and testimony, briefly, the regime established, except as may be one of those covered by the law, which is sufficient to state which of them is. TS
Argument: "the expression" all legal purposes, which is reflected in the provision, (...) so all-encompassing term, and lacking any evidence to delimit its scope, it can affect other areas outside subject to statutory regulation, evidence of matrimonial property in the document, overstepping the limits of that power to affect regulatory and legal provisions on performance requirements of the marriage or the valuation assigned by law to other officers, as the party appellant with reference to the arts. 18 of the Code of Commerce and 18 of the Mortgage Act and, in general, allowing an interpretation of the scope of such a notarial action which is inconsistent with the statutory scheme. "
" the mere record of the agreed legal regime in a marriage is consistent with other estimates of the precept, that in the case legal regime is limited to the appointment. You can not say the same about the anticipation of the witness to "briefly" the matrimonial property, other than those covered by the law, agreed in a marriage, as well as the reference to a statutory scheme allows the identification of the and legal scope, being a matrimonial property and other provisions embodied in the relevant knowledge necessary for them to reaching their proper identification and assessment of its scope in such conditions that provides the only indication of a particular legal regime, which calls into question a witness brief that prevents such an assessment carried out under appropriate conditions for the staff concerned. Accordingly the Board believes that the term "short" should be annulled. " COMMENT
JDR:
If the matrimonial capitulation is to be called for the surrender for registration qualification in order to check whether "the act or contract would affect or could affect future financial consequences of marriage" and according to them, to apply the articles of the relevant Mortgage Regulations (Article 90 et seq.)
3 .- According to the supreme court, the notary must review the registration information in the commercial register of powers and appointment of business managers?
Article 165.
When one of the grantors attend the ceremony on behalf of a corporation, public body, corporation or other social person, is expressed this situation by appointing, as well as those relating to the identity of the representative, the name of the entity and its address, data registration and tax identification number if any, and indicating the title data which proves the said representation. The representative will sign the document with his own firm, without the need to precede the name or use the signature or name of the entity he represents.
TS:; The TS does not override other end of this article, but it is interpreted in the following sense:
this provision is challenged as "the requirement of registration in the Register of the alleged representation absent "as the reference to" data entry "refers to the entity and not the performance.
This challenge can not be shared, because apart from the registration information of the entity concerned, the rule refers to the indication of "heading data which proves the said representation," one of them and no less important is its listing as appropriate, so the proof of this fact is implicit in the provision and can not be justified on the same lack of reflection in the document.
should add that the appellant refers to the mandatory registration in the Commercial Register of the appointment and dismissal of managers and general powers granted by commercial companies, ex art. 22 of the Code of Commerce, regardless of the art. RN 165 refers to "society, public institutions, social Corporation or other person" in general, which may not apply to this requirement, which justifies the generic wording of the provision that at Moreover, in no way affects the system of registration of such appointment and powers of attorney or court decisions on civil registration documents in relation to the previous entry in the Register referred to the cited art. 22 of the Code of Commerce. "
JDR COMMENT:
The appellant sought the annulment of the provision not explicitly impose the requirement that the notary registration data express the position or power in the commercial register.
The TS does not override the provision it is not always required to be registered in the commercial register, but when it is, understands that the obligation to review data registration is already implied in the precept.
4 .- How must describe the property in writing when there is a change in descriptive?
Article 171.
In the description of the property, notaries rectify erroneous data in accordance with what is cadastral certification descriptive and graphic material that reflects their reality.
When such corrections shall be entered with the new data which appear in the title for the proper identification of the property with the entries in the register, and in subsequent documents only will need to enter the description update, correct again if need be.
TS: The Supreme Court annulled the precept fully transcribed, with the following argument: "Certainly the provision is to encourage the notary public accommodation under the description of the property to the corresponding cadastral certification, perform a correction affecting such matters as the physical reality of the farm, read in conjunction with the entries in the register, which affects the issue of consistency between the Registry and non registered reality, alluding to the provisions as Art. 53.7 of Law 13/1996 of 30 December on Fiscal, Administrative and Social Order or Title IV of the Mortgage Law (Articles 198 et seq), which is solved in accordance with this regulation in the area of \u200b\u200bthe registry function, so that the contested precept as possible a notarization, that beyond the simple description of the property is under the public faith shape one's own field rectification registration in anticipation of it, affects the implementation of such legislation because of the preexistence of the rectification of attorney, which can not be affected by a a regulatory standard. Leading to the estimation of the challenge and the cancellation of the provision. "
COMMENT JDR: It is not easy to draw a conclusion from such cancellation. It seems that the notary should always state the description of the property registry, adding corrections claiming stakeholders, therefore, is not the notary, as I said the injunction overturned, "rectify" the description, but will collect the manifestation of grantors claiming a correction, the effectiveness or not depends on the qualification and registration. As has been canceled
paragraph that said "in the subsequent documents need only be updated to record the description," I interpret that, conversely, the notary must always continue collecting registry description (and adds any amendments alleging grantors) to help identify the property subject of writing with which he has registered.
.- last.
Joaquin Delgado Ramos, Notary and Registrar of the property.
LAND REGISTRY. MOTIVATION AND LEGAL CONSEQUENCES OF THE JUDGEMENT OF REGULATION PART annulling ATTORNEY.
(JDR) in June 2008.
ruling by the Supreme Court on May 20, two thousand eight, relapse 63/07 administrative appeal against Royal Decree 45/2007 of 19 January, amending Regulation of the organization and governance of Notaries, have been canceled several articles or paragraphs of that regulation.
This work is not very important to analyze the impact that the sentence is in the configuration of the notarial profession in Spain, but simply outline the main legal reasons why the Supreme Court has nullified the statutory provisions relating to judicial review by the notary , and discuss some practical consequences that affect the specific registration qualification of notarial documents.
A. - MAIN REASONS FOR THE JUDGEMENT OF PARAGRAPHS OR CANCEL TS RULES OF PROCEDURE FOR THE CONTROL OF ATTORNEY LEGALITY OF THE NOTARY, DENIAL OF AUTHORIZATION DOCUMENT FOR SUCH PURPOSE, AND SUCH APPEAL AGAINST REFUSAL.
STATEMENT:
1 .- LEGAL CONTROL OF ATTORNEY CAN ONLY BE A STANDARD ESTABLISHED BY LAW WITH THE RANK ASSIGNED AND THE APPLICABLE LAW OF NOTARIES MAKES NO SUCH THING.
TS acknowledges that it has to decide "on the legal viability or the expediency of establishing a judicial review by notaries." But it says its establishment "has to respond to the will of the legislature expressed in the appropriate standard for legal status." E
interprets and declares that the present Articles notarial law sets no such thing, but when discussing the notarial examination of "the legality of granting" refer to "the giving of faith by the notary that the grant has taken place in circumstances that expresses the art . 193, made reservations and legal notices referred to in art. 194 and signed the deed in the manner provided for in art. 195, after which the document authorizing the notary. "
2 .- IF ANY UNFAVORABLE TRIAL ON LEGALITY OF NOTARY HAS NO LEGAL UNDER STATUTORY LEVY THAT THIS IS THE RESULT OF THE REJECTION OF YOUR AUTHORIZATION OR INTERVENTION.
This, "because of the importance that the denial may have the rights and legal entitlements of a patrimonial nature of stakeholders, as depriving them of public documents (arts. 1278 and 1279 CC) and the corresponding security and efficiency that derives from it (art. 1218 CC) and possibilities of negotiating such Warranty provided, and the subsequent protection by registration, even if provisional and temporary, providing access to the register by the corresponding entry of presentation, starting with the possible. rectification and the consequent effects of tai priority (Art. 17.18, 24, 25, 32 LH, arts. 1473 second paragraph 1526, second paragraph of CC, etc), to name the most prominent aspects. "
He added: "These effects are projected onto the right of property, committed much of the legal acts or business in question, affecting the acquisition, conservation and efficiency, therefore matter is to be understood subject to legal reserve as appears from the art. 33.2 of the Constitution in relation to art. 53.1 thereof, then affects substantive aspects of the exercise and scope of the law. " Therefore
TS estimates that "lack a specific statutory power to establish regulations allowing the refusal of permission or intervention of attorney as a result of unfavorable opinion of legality.
As is clear from what has been said before, it can not be found in those arts. 17bis and 24 of the Notaries Act, despite its recent amendment by the laws 24/2001 and 36/2006, which does not even serve to justify under control of lawfulness in terms that are the statutory provision as has been reasoned before and contain any provision on the possibility of refusal by the notary of his ministry and the review of any decision to that effect. "
adds that "the legislator, when establishing specific limitations on access to the notarization of legal acts or business has come to arrangements with force of law, as the appellant, such is the case, inter alia, Art. 10.6 of Law 26/1984 of 19 July, General Counsel for the Defence of Consumers and Users, which prevents the authorization by the Notary of those contracts or deals in which it is intended to include clauses declared void by abusive Judgement entered in the register of the General Conditions, the art. 4.4 of Law 42/1998 of 15 December on the timeshare rights of property for tourist use, according to which notaries can not authorize a deed governing a timeshare scheme, while not stating the compliance with the requirements in paragraphs 1 and 2 of the provision itself, the art. 20 of Law 38/1999 of November 5, Building Management, which prevents the approval of deeds of declaration of new work without proving the constitution of the guarantees established in the art. 19 of the Act, or the art. 25.5 of Law 42/2003 of November 21, Forestry, which prevents the notary deed authorizing acquisition without first proving the actual notification to the Administration, which requires that provision. 3 .-
POSSIBLE REVISION OF THE NEGATIVE TO AUTHORIZE THE NOTARY DOCUMENT IS SUBJECT ALSO SUBJECT TO LAW.
The TS also overrides the paragraph on to "review the denial of authorization or intervention of attorney", as that regulation "goes beyond the regulatory scope to be subject to legal reserve (section 105.c, CE)."
4 .- CONSEQUENTLY, ALSO CANCELS OTHER PARAGRAPHS or precepts referring to a LEGAL CONTROL OF ATTORNEY, AUTHORIZATION OR DENIAL Therefore, the TS has deemed illegal. After
cancel much of the art 154 of the Notarial Regulation, also cancels other ends or items that are based on "the concept of judicial review and therefore attorney refusing permission as set out in art. 145 of the Regulation itself we considered illegal, but may invoke the provisions of paragraph preceding it invokes as art. 17bis of the Law on Notaries, because when considering the challenge of that art. 145 we have already stated what is the scope of the legal principle that coverage does not serve the statutory provision. "
IMPACT OF JUDGEMENT IN PRACTICE REGISTRY.
ISSUES.
In each case, is the text of the article, deleting it annulled by the Supreme Court, outlines the reasons for cancellation to the following statement, and concludes with a commentary on its practical consequences JDR
1. Is it necessary for the granting English expressly show what their civilian neighborhood? Should accredited?
Article 161. Regarding English nationality and identity is proof that a passport or national identity and the vicinity of the place of issue, unless you state otherwise the person
TS Reason "as a form of accreditation includes neighborhood civil, for the place of execution, unless you state otherwise the person concerned, the regulations establishing a presumption of truth of such a civilian neighborhood which is inconsistent with the regulation of the acquisition thereof, provided for in art. 14 of the Civil Code "
"Presumption of connection instead of granting the public document to the accreditation of a particular regional citizenship is contrary to the provisions of art. 14 of the Civil Code, which relates one to forms of acquisition of a specific civilian neighborhood, which is not the mere expression of interest, which determines the annulment of the provision in the clause being challenged. "
practical consequences, as JDR:
According to TS, civil residence must be expressed in any event, and also accredited. Possible
media accreditation: a.
- a statement supported by the concerned trial attorney for visibility that point.
b. - Certification of Civil Registry, where it has been expressly stated to the civil registry will acquire the residence of 2 years, or to retain the former despite new residence of 10 years.
2 .- How to be expressed and if credited the conventional matrimonial?
Article 159.
The circumstances concerning the status of each respondent shall be expressed by saying if you are single, married, legally separated, widowed or divorced.
also may be included at the request of stakeholders union status or de facto separation.
If the grantor is married, legally separated or divorced, and the act or contract would affect or could affect future financial consequences of their current marriage or in your case, above, shall include the name of the spouse who affects or could affect, as well as matrimonial property.
The circumstances referred to in this article shall be recorded by the notary so that resulting from the manifestations of those appearing.
be expressed in any event, the economic regime of marriage not legally separated. Though the statement of sufficient legal grantor. Established if the marriage is sufficient for all legal purposes, be credited to the notary certificate was granted as true. The notary deed of capitulation will identify and, where appropriate, their registration record, and testimony, briefly, the regime established, except as may be one of those covered by the law, which is sufficient to state which of them is. TS
Argument: "the expression" all legal purposes, which is reflected in the provision, (...) so all-encompassing term, and lacking any evidence to delimit its scope, it can affect other areas outside subject to statutory regulation, evidence of matrimonial property in the document, overstepping the limits of that power to affect regulatory and legal provisions on performance requirements of the marriage or the valuation assigned by law to other officers, as the party appellant with reference to the arts. 18 of the Code of Commerce and 18 of the Mortgage Act and, in general, allowing an interpretation of the scope of such a notarial action which is inconsistent with the statutory scheme. "
" the mere record of the agreed legal regime in a marriage is consistent with other estimates of the precept, that in the case legal regime is limited to the appointment. You can not say the same about the anticipation of the witness to "briefly" the matrimonial property, other than those covered by the law, agreed in a marriage, as well as the reference to a statutory scheme allows the identification of the and legal scope, being a matrimonial property and other provisions embodied in the relevant knowledge necessary for them to reaching their proper identification and assessment of its scope in such conditions that provides the only indication of a particular legal regime, which calls into question a witness brief that prevents such an assessment carried out under appropriate conditions for the staff concerned. Accordingly the Board believes that the term "short" should be annulled. " COMMENT
JDR:
If the matrimonial capitulation is to be called for the surrender for registration qualification in order to check whether "the act or contract would affect or could affect future financial consequences of marriage" and according to them, to apply the articles of the relevant Mortgage Regulations (Article 90 et seq.)
3 .- According to the supreme court, the notary must review the registration information in the commercial register of powers and appointment of business managers?
Article 165.
When one of the grantors attend the ceremony on behalf of a corporation, public body, corporation or other social person, is expressed this situation by appointing, as well as those relating to the identity of the representative, the name of the entity and its address, data registration and tax identification number if any, and indicating the title data which proves the said representation. The representative will sign the document with his own firm, without the need to precede the name or use the signature or name of the entity he represents.
TS:; The TS does not override other end of this article, but it is interpreted in the following sense:
this provision is challenged as "the requirement of registration in the Register of the alleged representation absent "as the reference to" data entry "refers to the entity and not the performance.
This challenge can not be shared, because apart from the registration information of the entity concerned, the rule refers to the indication of "heading data which proves the said representation," one of them and no less important is its listing as appropriate, so the proof of this fact is implicit in the provision and can not be justified on the same lack of reflection in the document.
should add that the appellant refers to the mandatory registration in the Commercial Register of the appointment and dismissal of managers and general powers granted by commercial companies, ex art. 22 of the Code of Commerce, regardless of the art. RN 165 refers to "society, public institutions, social Corporation or other person" in general, which may not apply to this requirement, which justifies the generic wording of the provision that at Moreover, in no way affects the system of registration of such appointment and powers of attorney or court decisions on civil registration documents in relation to the previous entry in the Register referred to the cited art. 22 of the Code of Commerce. "
JDR COMMENT:
The appellant sought the annulment of the provision not explicitly impose the requirement that the notary registration data express the position or power in the commercial register.
The TS does not override the provision it is not always required to be registered in the commercial register, but when it is, understands that the obligation to review data registration is already implied in the precept.
4 .- How must describe the property in writing when there is a change in descriptive?
Article 171.
In the description of the property, notaries rectify erroneous data in accordance with what is cadastral certification descriptive and graphic material that reflects their reality.
When such corrections shall be entered with the new data which appear in the title for the proper identification of the property with the entries in the register, and in subsequent documents only will need to enter the description update, correct again if need be.
TS: The Supreme Court annulled the precept fully transcribed, with the following argument: "Certainly the provision is to encourage the notary public accommodation under the description of the property to the corresponding cadastral certification, perform a correction affecting such matters as the physical reality of the farm, read in conjunction with the entries in the register, which affects the issue of consistency between the Registry and non registered reality, alluding to the provisions as Art. 53.7 of Law 13/1996 of 30 December on Fiscal, Administrative and Social Order or Title IV of the Mortgage Law (Articles 198 et seq), which is solved in accordance with this regulation in the area of \u200b\u200bthe registry function, so that the contested precept as possible a notarization, that beyond the simple description of the property is under the public faith shape one's own field rectification registration in anticipation of it, affects the implementation of such legislation because of the preexistence of the rectification of attorney, which can not be affected by a a regulatory standard. Leading to the estimation of the challenge and the cancellation of the provision. "
COMMENT JDR: It is not easy to draw a conclusion from such cancellation. It seems that the notary should always state the description of the property registry, adding corrections claiming stakeholders, therefore, is not the notary, as I said the injunction overturned, "rectify" the description, but will collect the manifestation of grantors claiming a correction, the effectiveness or not depends on the qualification and registration. As has been canceled
paragraph that said "in the subsequent documents need only be updated to record the description," I interpret that, conversely, the notary must always continue collecting registry description (and adds any amendments alleging grantors) to help identify the property subject of writing with which he has registered.
.- last.
Joaquin Delgado Ramos, Notary and Registrar of the property.
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INTERVENTION
PARENTS SIGNATURE OF CREDIT
Antonio Ripoll Soler, Notary Torrevieja (Alicante).
The Supreme Court Judgement of May 20, 2008 da letter to the challenging nature of the second paragraph of Article 197 bis of the Rules Attorney, introduced by RD 45/2007 of 19 January. In that provision, basically disclaims physical presence to the representative of the credit institution before the policy can be operated properly.
The following lines, after a more careful reading of the sentence, intended to address the problem of the presence of representatives of banks to intervene in the policy signature.
The literalness of the Judgement, it is true, seems to exclude logically from the publication of the same, the possibility of intervention by the signature of the representatives of credit institutions if they fail to appear before a notary for the purpose, even without unit act.
is no doubt that open line followed by the sentence, the usefulness of the policy is called into question, because although it will remain a notary, it is no less the rest agility to traffic, at least as understood so far. This reduced lead agility, as it can not be otherwise, the crisis Documentary vehicle itself, as if those who are interested in the intervention do not see it useful to be dispensed. All this without prejudice means that increasingly less distinction between policy and deeds, and if it is true that the policies are involved and writes are allowed, which means for the latter is the author of Notary the same, unlike what happens with the policy, where intervention it does is convert a private document in a public document (S.Ap. Badajoz-post-integration "of April 27, 1999), since the policy There is no need bank intervention as we say no means no the distinction and, accordingly, the different tariff treatment.
policy crisis will manifest, as several colleagues have pointed out, in two ways: 1) On the one hand, credit institutions will increase the limits above which intervention is required, 2) On the other hand, if cast doubt on the enforceability of the policies are not signed-by representatives of credit institutions, in the presence of the notary, the notarial intervention becomes useless. Do not forget that it is precisely the enforceability of that it is building the policy intervention. That the non-presence
limbers traffic is something undeniable, note that, currently, a "product Similarly, writing mortgage, banking practice tends to "ignore" the usual presence of their parents or to draw on the performance of various administrative agencies with appropriate powers, either by the figure of the president verbal or by the system platform facilitates e-notary. It is true that in any case the end, there is an attorney who appears before a notary.
in the operation of the policy as it has been produced to sentencing, however, has dispensed with such a presence, and, historically, at first merely as a commercial use, referred to by Fugard Estivill-covered by Article 2 of Commercial Code, in a second stage is devoted to the policy level in Article 33 of the Regulation of Brokers, as a result of the amendment made in 1997 by RD of 24 July. Subject to necessary
compliance with the Judgement, we must consider what changes as a result of it, in particular, involving the abolition of the paragraph in question and how it interacts with other legislation, we should not forget that the interpretation of any rule should be systematic legal, under Article 3 of the Civil Code. Moreover, the Supreme Court's role goes beyond that of being a sort of negative legislator, to expel a standard Land forms of the same, but on the other hand, can not go further, there are statutory Statutory who have not been affected, especially Article 95 of the Commercial Code, on which we will then, and if While it is true that complete the legal case (Arg art. 1.6. Cc), is no less true that the ratio decidendi is not only a merely interpretative value and that should be without prejudice to the existence of other rules legal status, as will be seen.
As a preliminary matter, which, in my opinion, is beyond doubt is that the deletion of the paragraph in question does not, without more, the revival of the article 33 of the Brokers Rules, the arguments are clear: 1) No regulation has disappeared from the policy of the Attorney Regulation has only been amputated part thereof, without prejudice to the rest of regulation is enough to make the policy work; 2) There is a provision repealing the reform of Attorney Regulation of Attorney Regulation that, how could it be any other way, by the very consistency of procedure, on the one hand, and internal consistency of the sentence, otherwise, has not been affected by Judgement at hand.
Notwithstanding the foregoing, however, will allow us to question the arguments by which the Judgement concludes that not been properly complied notarial function if no action is performed based on the presence of the representatives of credit institutions.
The Supreme Court, as to whether the non-presence of faith violates the Foundation as set by the Notaries Act, Articles 1 and 17, said: "The Board understands that the violation occurs, as in the case of the grant , the giving of faith is determined by the intervention of a notary, which not only verify the signature and representation of the parties thereto but includes other aspects such as timely information on the contents of a public and free expression of consent by the parties thereto, being indicative about Article 197 quater of the regulation, which states that the phrase "my speech" means, among other things, that the content of the legal business is conducted in accordance with the declarations of intent by the parties, have made the reserves and giving legal notices, compliance and approval of the contents of the policy. Dation of faith that requires the presence of attorney for its finding and can not be replaced by a form of legitimacy of the signatures and opinion on the sufficiency of the credentials submitted as set out in the precept. The invocation of the previous regime to the integration of Trade Corridor can not justify altering public trust scheme established by law and no further facilitation of legal traffic can not be pursued apart by regulation of securities legally established for that purpose. "
In my view, and with due respect, I think the Supreme Court does not understand the dual aspect that notarization involves the intervention of the policy. There are two parties and competing interests in the policy. Indeed, on one hand, we present the interests of the consumer, "part non-entity", in relation to those interests is perfectly predicable suggesting the Supreme Court, not only from the perspective of the strict legislation Notarial both normative reality by going to the post-judgment, as the reform itself before the Attorney Regulation, but also takes reason for the position of the Judgement, taking the perspective of consumer legislation itself and users .
front of the "weaker party" there is a credit institution which is deeply informed, has a legal advisory service, has prepared the content of the contract which is incorporated into the policy, which provides the policy, usually a Notary , or at least, is to whom the policy returns intervened. Also, is that ultimately keeps track of the policy from that in his case, delivery to the customer to go to the notary as it deems appropriate, until they "pay the operation." Can we really consider that the will of the entity is not properly informed?, What consent was not freely given?, What is not warned of the consequences of their actions?
The Judgement of the Supreme Court in any dispute that the notarization in the trial of knowledge of the firm, as to the giving of faith that the signature is attributable to a particular person, agent of the entity-less reliable than the firm face, which also is harder to argue against firms consist repeated in the archives of the notary, unlike what happens for others that also are legitimate and not so frequently printed, on any client / attorney rogante performance.
Finally, as to the warnings, the notary public to any incident that arises when the firm contact with the body before surgery and signature by the "client" to correct them, even by Annex is sometimes prepared in the notary and the company confirms, as reflected in the intervention itself, and which clearly demonstrates the high degree of confidence, deposited by entities in the value of the performance attorney.
So, it is noteworthy that when questioned the enforceability of the policy has been for lack of presence, then the corridor, at the time of the signing of the defendant.
The implementation of the policy, by definition, be filed by the credit institution, which will not object or assert any but the performance of Ontario, pursuant to Article 95 of the Commercial Code, constitutes legal, not repealed nor indeed canceled, is satisfied of the identity and legal capacity to hire people whose business involved, and, where appropriate, the legitimacy of the signatures of the contractors, which covers not only the Commercial Code.
On the other hand, although to a lesser extent, as already pointed Fugard Estivill and Onate Cuadros, Article 197 bis, second paragraph provides "Unless otherwise is stated, it is understood that the firm has been made in the presence of notary in the same place and at the same date of the operation. " So, the Supreme Court, which has been so careful when making its decision eliminating articles, paragraphs or even words of the text of the regulation, to achieve the intended effect should be deleted from that paragraph "that the signature has been placed in the presence of the notary "and leaving him with the following wording: "While not stating otherwise, it is understood that the firm has been placed in the same place at the same date of operation" and, with the disappearance of a contrario on the possibility of signing with respect to non-attendance firms do not face such an alternative would disappear. However, the Supreme Court has ignored this deletion, which no doubt is due to an error if the ratio decidendi is consistently, nonetheless, the same formal arguments adduced to justify the regulation in the cancellation of its precepts fit also to exclude the possibility of signing non-attendance in the present case.
It said so far is that there are sufficient arguments to defend the firm non-attendance of representatives of credit institutions, of these arguments, summing up, we can highlight:
1) Article 95 of C.co. and the interpretation thereof has been carried out jurisprudencialmente and historically.
2) The application of principle incurred by the ratio decidendi of the Judgement which assumes that the positions of the credit institution and its counterpart are equivalent and interchangeable.
3) At the same time, although technically feasible in place of General Theory of Law, speaking of retroactivity, it does not seem very logical to implement a dispatch signature policies without face-to those signed before the reform, and others, intervened after sentencing, be deprived of such an effect, despite identical attend failures and despite being in force in Article 1 and 17 LN LN at that moment, regardless of the situation in which, for some interpreters, policies may be signed in the intervening open after the entry into force of regulatory amendments to the publication of the sentence. And all this on the basis of arguments that, at least, are worthy of interpretation.
With the above be true, it is equally true that the situation generated after the sentence is not desirable and produces a high degree of insecurity, they may question the enforceability of the policy in a court decision for lack of signature-face, while, which is not very difficult to predict, the registers should be inaccessible to those policies that may have it in the Personal Property Registry .
In this situation we must consider what alternatives fit, certainly, the alternatives are few, especially when you consider that most entities is contrary to the sign face, for the additional costs attributable to their parents.
As a preliminary matter, note that what is indisputable is that involves misrepresentation to state intervention, even to imply that this is Where do you appeal to the formula "with my statement," the firm's face when he really has not been. The notary who covertly naturalization paper signature face a "part non-entity" will be in clear breach of Article 1 and 17 bis 197 LN and RN, while stating is a forgery.
The solutions proposed in various forums to be well-intentioned are inconclusive. Thus, having an open policy sine die pending the representative to appear once a month (or as often as you wish) is not operational, it is also quite timeless proceed to return the policy after this period of time because the representative has not appeared before, without prejudice to any problems that may result in drawing up the index.
same is true if the notary that travels to the entity to collect the signature of the attorney, plus it is uneconomical and significantly more expensive policy, especially in cases of consumer credit and small amount, if you added 18 euros which involves the output. All this, notwithstanding the criticism it deserves the benefit of the function in these cases and out of the office of attorney.
The ability to only partially satisfies no one, sowing uncertainty and devalues \u200b\u200bthe value of the policy.
Given this backdrop, however, we are not Notaries can ask more than what we can offer, which also has special significance today, when taking into account the literal devaluative of our role as being poured into the sentence. Therefore, what to do, in my opinion, the agency warned of possible interpretive judgments arising from the decision, in such a situation the body must decide, so far has been, if you opt for the signature-face, it is desirable that the agent of the entity signs a neutral in the Annex to be informed of the situation. If despite this nothing firm and the entity sends the policy to the notary and stamped with his signature, it seems feasible by reiterating a written warning that must be done before signing. The entities asesoráis read the notary assistance and often, a posteriori, suggest what they consider appropriate, in that case it will be appropriate, even repeating a signature face.
All this must be accompanied by corresponding efforts by our representatives dictating the relevant circular and consultation with the Directorate General, which is required not only legally, under the provisions of section 344 of RN, but also morally have driven reform where, what is clear, this collateral damage was not expected.
It would also be the signing of appropriate agreements with Institutions, for who would choose to opt for the traditional interpretation or that which it seems to invite the new jurisprudential landscape.
What is clear is not conducive to anyone is a dispersion of practices among different notaries, while breaking fair competition in the provision of the function. Antonio Soler Ripoll
Notary Torrevieja, Alicante
to June 8, 2008
PARENTS SIGNATURE OF CREDIT
Antonio Ripoll Soler, Notary Torrevieja (Alicante).
The Supreme Court Judgement of May 20, 2008 da letter to the challenging nature of the second paragraph of Article 197 bis of the Rules Attorney, introduced by RD 45/2007 of 19 January. In that provision, basically disclaims physical presence to the representative of the credit institution before the policy can be operated properly.
The following lines, after a more careful reading of the sentence, intended to address the problem of the presence of representatives of banks to intervene in the policy signature.
The literalness of the Judgement, it is true, seems to exclude logically from the publication of the same, the possibility of intervention by the signature of the representatives of credit institutions if they fail to appear before a notary for the purpose, even without unit act.
is no doubt that open line followed by the sentence, the usefulness of the policy is called into question, because although it will remain a notary, it is no less the rest agility to traffic, at least as understood so far. This reduced lead agility, as it can not be otherwise, the crisis Documentary vehicle itself, as if those who are interested in the intervention do not see it useful to be dispensed. All this without prejudice means that increasingly less distinction between policy and deeds, and if it is true that the policies are involved and writes are allowed, which means for the latter is the author of Notary the same, unlike what happens with the policy, where intervention it does is convert a private document in a public document (S.Ap. Badajoz-post-integration "of April 27, 1999), since the policy There is no need bank intervention as we say no means no the distinction and, accordingly, the different tariff treatment.
policy crisis will manifest, as several colleagues have pointed out, in two ways: 1) On the one hand, credit institutions will increase the limits above which intervention is required, 2) On the other hand, if cast doubt on the enforceability of the policies are not signed-by representatives of credit institutions, in the presence of the notary, the notarial intervention becomes useless. Do not forget that it is precisely the enforceability of that it is building the policy intervention. That the non-presence
limbers traffic is something undeniable, note that, currently, a "product Similarly, writing mortgage, banking practice tends to "ignore" the usual presence of their parents or to draw on the performance of various administrative agencies with appropriate powers, either by the figure of the president verbal or by the system platform facilitates e-notary. It is true that in any case the end, there is an attorney who appears before a notary.
in the operation of the policy as it has been produced to sentencing, however, has dispensed with such a presence, and, historically, at first merely as a commercial use, referred to by Fugard Estivill-covered by Article 2 of Commercial Code, in a second stage is devoted to the policy level in Article 33 of the Regulation of Brokers, as a result of the amendment made in 1997 by RD of 24 July. Subject to necessary
compliance with the Judgement, we must consider what changes as a result of it, in particular, involving the abolition of the paragraph in question and how it interacts with other legislation, we should not forget that the interpretation of any rule should be systematic legal, under Article 3 of the Civil Code. Moreover, the Supreme Court's role goes beyond that of being a sort of negative legislator, to expel a standard Land forms of the same, but on the other hand, can not go further, there are statutory Statutory who have not been affected, especially Article 95 of the Commercial Code, on which we will then, and if While it is true that complete the legal case (Arg art. 1.6. Cc), is no less true that the ratio decidendi is not only a merely interpretative value and that should be without prejudice to the existence of other rules legal status, as will be seen.
As a preliminary matter, which, in my opinion, is beyond doubt is that the deletion of the paragraph in question does not, without more, the revival of the article 33 of the Brokers Rules, the arguments are clear: 1) No regulation has disappeared from the policy of the Attorney Regulation has only been amputated part thereof, without prejudice to the rest of regulation is enough to make the policy work; 2) There is a provision repealing the reform of Attorney Regulation of Attorney Regulation that, how could it be any other way, by the very consistency of procedure, on the one hand, and internal consistency of the sentence, otherwise, has not been affected by Judgement at hand.
Notwithstanding the foregoing, however, will allow us to question the arguments by which the Judgement concludes that not been properly complied notarial function if no action is performed based on the presence of the representatives of credit institutions.
The Supreme Court, as to whether the non-presence of faith violates the Foundation as set by the Notaries Act, Articles 1 and 17, said: "The Board understands that the violation occurs, as in the case of the grant , the giving of faith is determined by the intervention of a notary, which not only verify the signature and representation of the parties thereto but includes other aspects such as timely information on the contents of a public and free expression of consent by the parties thereto, being indicative about Article 197 quater of the regulation, which states that the phrase "my speech" means, among other things, that the content of the legal business is conducted in accordance with the declarations of intent by the parties, have made the reserves and giving legal notices, compliance and approval of the contents of the policy. Dation of faith that requires the presence of attorney for its finding and can not be replaced by a form of legitimacy of the signatures and opinion on the sufficiency of the credentials submitted as set out in the precept. The invocation of the previous regime to the integration of Trade Corridor can not justify altering public trust scheme established by law and no further facilitation of legal traffic can not be pursued apart by regulation of securities legally established for that purpose. "
In my view, and with due respect, I think the Supreme Court does not understand the dual aspect that notarization involves the intervention of the policy. There are two parties and competing interests in the policy. Indeed, on one hand, we present the interests of the consumer, "part non-entity", in relation to those interests is perfectly predicable suggesting the Supreme Court, not only from the perspective of the strict legislation Notarial both normative reality by going to the post-judgment, as the reform itself before the Attorney Regulation, but also takes reason for the position of the Judgement, taking the perspective of consumer legislation itself and users .
front of the "weaker party" there is a credit institution which is deeply informed, has a legal advisory service, has prepared the content of the contract which is incorporated into the policy, which provides the policy, usually a Notary , or at least, is to whom the policy returns intervened. Also, is that ultimately keeps track of the policy from that in his case, delivery to the customer to go to the notary as it deems appropriate, until they "pay the operation." Can we really consider that the will of the entity is not properly informed?, What consent was not freely given?, What is not warned of the consequences of their actions?
The Judgement of the Supreme Court in any dispute that the notarization in the trial of knowledge of the firm, as to the giving of faith that the signature is attributable to a particular person, agent of the entity-less reliable than the firm face, which also is harder to argue against firms consist repeated in the archives of the notary, unlike what happens for others that also are legitimate and not so frequently printed, on any client / attorney rogante performance.
Finally, as to the warnings, the notary public to any incident that arises when the firm contact with the body before surgery and signature by the "client" to correct them, even by Annex is sometimes prepared in the notary and the company confirms, as reflected in the intervention itself, and which clearly demonstrates the high degree of confidence, deposited by entities in the value of the performance attorney.
So, it is noteworthy that when questioned the enforceability of the policy has been for lack of presence, then the corridor, at the time of the signing of the defendant.
The implementation of the policy, by definition, be filed by the credit institution, which will not object or assert any but the performance of Ontario, pursuant to Article 95 of the Commercial Code, constitutes legal, not repealed nor indeed canceled, is satisfied of the identity and legal capacity to hire people whose business involved, and, where appropriate, the legitimacy of the signatures of the contractors, which covers not only the Commercial Code.
On the other hand, although to a lesser extent, as already pointed Fugard Estivill and Onate Cuadros, Article 197 bis, second paragraph provides "Unless otherwise is stated, it is understood that the firm has been made in the presence of notary in the same place and at the same date of the operation. " So, the Supreme Court, which has been so careful when making its decision eliminating articles, paragraphs or even words of the text of the regulation, to achieve the intended effect should be deleted from that paragraph "that the signature has been placed in the presence of the notary "and leaving him with the following wording: "While not stating otherwise, it is understood that the firm has been placed in the same place at the same date of operation" and, with the disappearance of a contrario on the possibility of signing with respect to non-attendance firms do not face such an alternative would disappear. However, the Supreme Court has ignored this deletion, which no doubt is due to an error if the ratio decidendi is consistently, nonetheless, the same formal arguments adduced to justify the regulation in the cancellation of its precepts fit also to exclude the possibility of signing non-attendance in the present case.
It said so far is that there are sufficient arguments to defend the firm non-attendance of representatives of credit institutions, of these arguments, summing up, we can highlight:
1) Article 95 of C.co. and the interpretation thereof has been carried out jurisprudencialmente and historically.
2) The application of principle incurred by the ratio decidendi of the Judgement which assumes that the positions of the credit institution and its counterpart are equivalent and interchangeable.
3) At the same time, although technically feasible in place of General Theory of Law, speaking of retroactivity, it does not seem very logical to implement a dispatch signature policies without face-to those signed before the reform, and others, intervened after sentencing, be deprived of such an effect, despite identical attend failures and despite being in force in Article 1 and 17 LN LN at that moment, regardless of the situation in which, for some interpreters, policies may be signed in the intervening open after the entry into force of regulatory amendments to the publication of the sentence. And all this on the basis of arguments that, at least, are worthy of interpretation.
With the above be true, it is equally true that the situation generated after the sentence is not desirable and produces a high degree of insecurity, they may question the enforceability of the policy in a court decision for lack of signature-face, while, which is not very difficult to predict, the registers should be inaccessible to those policies that may have it in the Personal Property Registry .
In this situation we must consider what alternatives fit, certainly, the alternatives are few, especially when you consider that most entities is contrary to the sign face, for the additional costs attributable to their parents.
As a preliminary matter, note that what is indisputable is that involves misrepresentation to state intervention, even to imply that this is Where do you appeal to the formula "with my statement," the firm's face when he really has not been. The notary who covertly naturalization paper signature face a "part non-entity" will be in clear breach of Article 1 and 17 bis 197 LN and RN, while stating is a forgery.
The solutions proposed in various forums to be well-intentioned are inconclusive. Thus, having an open policy sine die pending the representative to appear once a month (or as often as you wish) is not operational, it is also quite timeless proceed to return the policy after this period of time because the representative has not appeared before, without prejudice to any problems that may result in drawing up the index.
same is true if the notary that travels to the entity to collect the signature of the attorney, plus it is uneconomical and significantly more expensive policy, especially in cases of consumer credit and small amount, if you added 18 euros which involves the output. All this, notwithstanding the criticism it deserves the benefit of the function in these cases and out of the office of attorney.
The ability to only partially satisfies no one, sowing uncertainty and devalues \u200b\u200bthe value of the policy.
Given this backdrop, however, we are not Notaries can ask more than what we can offer, which also has special significance today, when taking into account the literal devaluative of our role as being poured into the sentence. Therefore, what to do, in my opinion, the agency warned of possible interpretive judgments arising from the decision, in such a situation the body must decide, so far has been, if you opt for the signature-face, it is desirable that the agent of the entity signs a neutral in the Annex to be informed of the situation. If despite this nothing firm and the entity sends the policy to the notary and stamped with his signature, it seems feasible by reiterating a written warning that must be done before signing. The entities asesoráis read the notary assistance and often, a posteriori, suggest what they consider appropriate, in that case it will be appropriate, even repeating a signature face.
All this must be accompanied by corresponding efforts by our representatives dictating the relevant circular and consultation with the Directorate General, which is required not only legally, under the provisions of section 344 of RN, but also morally have driven reform where, what is clear, this collateral damage was not expected.
It would also be the signing of appropriate agreements with Institutions, for who would choose to opt for the traditional interpretation or that which it seems to invite the new jurisprudential landscape.
What is clear is not conducive to anyone is a dispersion of practices among different notaries, while breaking fair competition in the provision of the function. Antonio Soler Ripoll
Notary Torrevieja, Alicante
to June 8, 2008
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