Notary Responsibilities

• The following are notes about the responsibility of notaries.

Foundations and Classes

• Responsibility is a person's obligation to assume damages that their actions may cause. Damages and interest are the value of the loss suffered by the victim and the profit the creditor failed to receive due to the obligation's non-execution.

Lawful Acts

• In the context of lawful acts, responsibility means fulfilling assumed obligations. Compensation for damages and interest includes only direct and necessary consequences of non-compliance. If non-compliance is malicious, compensation includes mediate consequences.

Illicit Acts

• For illicit acts, immediate consequences are attributable to the author. Mediate consequences are also attributable if foreseen or foreseeable with due diligence. Purely causal consequences are attributable if they should have resulted from the author's intent. Remote consequences without adequate causal link are not attributable.

Types of Responsibility

• Responsibility can be subjective or objective.
• Subjective responsibility is based on the person's intent or negligence.
• Objective responsibility disregards culpability, with the person liable even if subjectively blameless.

Objective Responsibility

• Those introducing a dangerous activity into society are liable, based on protecting victims from unjust damage. The burden of proving exemption from responsibility falls on the owner or guardian, reversing the "onus probandi".

Subjective Responsibility

• Elements include damage, imputability (requiring a minimum age and discernment), based on intent or negligence, and a causal link between damage and imputability.
• Unlike objective responsibility, subjective responsibility requires a subjective attribution factor based on the subject's activity.

Attribution Factor - Subjective

• The attribution factor can be subjective or objective. With subjective attribution, imputability and intent or negligence must be proven. Anyone causing damage to another through fault or negligence is obliged to repair the damage.

Attribution Factor - Objective

• In objective responsibility, those seeking to be excused must prove an external cause interrupting the causal link (e.g., victim's fault), a third party's fault for whom they are not responsible, or fortuitous event.
• One is not responsible for damage resulting from fortuitous event. Fortuitous events are those that could not have been foreseen or that, if foreseen, could not have been avoided.

Damage Responsibility

• The obligation extends to damage caused by those under one's care or by things one uses or possesses. To be exempt from liability for damage caused by things, the owner or guardian must show no fault on their part.
• However, if damage is caused by a risk or defect in the thing, liability is reduced to the degree that the victim was at fault. If the thing was used against the owner's will, the owner or guardian is not responsible.

Civil Responsibility of the Notary

• An illicit act must be contrary to the law, and to be punishable, it must cause damage to a third party. The first requirement is causing damage.
• No act is punishable without causing damage or an external act that could cause damage, and without imputing intent, fault, or negligence to its agents. The concept of causality arises when a specific act is proven to have directly caused the damage, and the causality must be adequate.
• Responsibility is the capacity of every subject to know and accept the consequences of a freely performed act; its violation imposes a sanction for breach of duty or obligation.

Common Cases of Notarial Responsibility

• Kinship
• Inadequate advice
• Acting without competence (territorial or material)
• Defect in identifying the grantor
• Refusing to exercise function without justified cause
• Not having the necessary documentation in view at the time of granting
• Existence of unpaid tax obligations
• Responsibility of the incumbent notary for the acts of the assigned notary
• Responsibility for moral damages

Lack or Insufficiency

• Lack or insufficiency of:
  • Capacity of the granting parties or those involved in the act
  • Legitimation of the subjects
  • Legality of the act or documented business (in whole or in principal part)
  • Observance of substantial legal formalities
  • Issuance and delivery of an authentic copy
  • Comparison between the text of the original and the copy
  • Study of the title of the assignor
• Non-presentation of the deed for registration in the Public Registries, or late presentation.
• The responsibility of notaries for the improper performance of their professional functions can be of four types: administrative, civil, criminal, and professional. Civil liability derives from breach of duty and damage caused to third parties.
• The notary's responsibility is contractual to the parties of the business, but is extra-contractual with respect to the true owner of the domain in the event they were not part of the authorized notarial relation.
• The content reviewed covers obligations of means and outcomes, as well as relevant criteria and jurisprudence.

Criminal Responsibility

• Criminal liability arises from conduct that can be considered criminal.
• Notaries can incur criminal liability as authors, co-authors, instigators, or participants in crimes defined in the Penal Code.
• Participants are those who take part in the execution of the act or provide aid or cooperation to the author without which the crime could not have been committed.
• Instigators are those who have directly determined another to commit the crime. Also punishable are those who cooperate in any other way to the execution of the fact and those who provide subsequent assistance fulfilling previous promises.

Common Notarial Crimes

• Document forgery (ideological and material falsity)
• Fraud
• Destruction or suppression of documents
• Violation of professional secrecy
• Omission of a public official

Ideological and Material Falsity

• Public faith is protected in established law. The notary's criminal responsibility refers to affecting the content of a true formal structure.
• The production of harm is not required to establish the existence of possibility (e.g., changing the copy in relation to the original).
• It is also called the crime of “ideological falsehood,” punishable by imprisonment from one to six years for an individual who makes false statements in a public document.
• A notary can be involved, for instance, by authorizing a record of findings where its authority is required and later demonstrated in court. If the document has any false statements or information, the notary will incur the crime.
• Material falsity is typified as altering a trustworthy document.
• If a document is falsified or tampered with to accredit someone's falsified identity, the notary will be punished in a more strict process.

Defrauding

• Defrauding is punishable with imprisonment, which can range from one month to six years, for an individual that defrauds another with a fictional title, simulated quality, falsified influences, abuse of power, appearing to have revenue, and failing to validate all other information.

Destruction or Suppression of Documents

• The Penal Code expresses that anyone who destroys a document to cause harm will be liable to charges. The aforementioned instruments are the same as those defined in public instruments. The notary can participate in the crimes when officiating acts.

Other Cases of Misconduct

• The notary, like any other person, can participate in common crimes.

Administrative Responsibility

• Administrative responsibility derives from non-compliance with tax laws and is addressed by the relevant tribunals.
• Disciplinary sanctions for registered notaries include warnings, fines, suspensions, indefinite suspension, and removal from office.

Non-Compliance of Fiscal Obligations

• Disciplinary measures are applied according to the severity of the offense.
• Warnings and fines are applied for professional negligence, minor breaches of duty, non-compliance with laws, indiscipline, or breaches of professional ethics, provided they do not fundamentally affect the interests of third parties or the Notarial Institution.

Formal Failures

• Suspension of up to one month is applied for repeated minor offenses, irregularities of relative severity, failure to pay more than two installments of fees, or offering or giving third parties a share of the fees belonging to them.
• Suspension for more than one month up to an indefinite time and dismissal shall correspond to faults and reiteration.

Formal Infractions

• Notary can be sanctioned for formal infractions as well as indiscipline.

Tax Penal Law

• The notary is liable if, acting as a withholding or collection agent for national taxes, fails to deposit the tax withheld within ten business days of the due date.
• The notary is also punished with special disqualification if knowingly decrees, reports, attests, authorizes, or certifies legal acts, balance sheets, accounting records, or documentation to facilitate the commission of the crimes under the aforementioned law.

Laws Regarding Money Laundering

• The aforementioned code added the types of crime related to money laundering. Public notaries are obligated to inform the Financial Information Unit. This article establishes the following terms for persons that require these obligations.
• Collect reliable records (identification, tax info). Suspicious activity must be released, with the understanding that they follow habits (for lawyers, accountants, etc). Also, keep in mind that laws on activity for customers cannot be revealed.

Professional Responsibility

• Professional responsibility arises from non-compliance by the Notaries with the aforementioned Decree or of the provisions dictated for the best observance of these or of the principles of professional ethics or of the tax laws. Any contraventions will affect the notarial institutions that have rights in the matter.
• Competence depends on the Supervisory Court and the College of Notaries, also in the form and conditions provided for by this Law. Administrative, civil, or criminal responsibility, should it arise due to reasons associated with professional practice, might, after a summation by the College of Notaries, impose accessory sanctions.

Supervisory Tribunal

• The government and discipline of the Notary Public corresponds to the Supervisory Tribunal and the College of Notaries. In each district, the aforementioned group will designate both a president and board.
• The Tribunal will hear in only some instances about the issues that are subject to prior investigation by the Executive Board. Tribunal decisions can be excused by appeals, or if the legal reasons are found the Plenary Tribunal will create supervisory terms. Also, any related court orders can be presented in writing at the summit, and there decisions are found in article 38 of that accord.

Procedure, Powers, and Disciplinary Sanctions

• Denounced or established, the Board of Directors of the College of Notaries shall proceed to instruct summary with intervention of the accused, adopting to that effect all the measures that are deemed necessary, and shall be the end of the aforementioned process.
• The Council shall issue a ruling and, regardless of if its admonishment, its still up to its original standing. Any fines that might be charged still rely in full.