Responsabilidad del Notario

• The topic is the responsibility of the notary.

Fundamentals and Classes

• Responsibility is the obligation of a person to assume damages caused by their actions.
• Damages and interests refer to the value of the loss suffered by the victim and the utility the creditor failed to receive due to non-execution of the obligation in due time.
• Responsibility: fulfilling assumed obligations within lawful acts.
• Compensation for damages and interests only includes immediate and necessary consequences of non-compliance. Malicious non-execution also includes intermediate consequences.
• Immediate consequences of free acts are attributable to the author. Mediate consequences are also attributable if foreseen or foreseeable with due attention.
• Purely casual consequences are attributable if they should have resulted according to the author's intent. Remote consequences lacking adequate causality are not attributable.
• Responsibility can be subjective or objective. Subjective responsibility is based on malice or fault, while objective responsibility disregards culpability.
• Objective responsibility applies even to those legally unaccountable.
• Someone who introduces a dangerous activity to society must respond based on protecting the victim from unjustified harm.
• Proof of exemption from responsibility falls on the owner or guardian of the dangerous thing.
• Subjective responsibility elements: damage, accountability (requiring minimum age and understanding) based on malice (intention) or fault (negligence), and a causal link between damage and accountability.
• Unlike objective responsibility (requiring only causal link and damage), subjective responsibility needs a subjective attribution factor based on the subject's activity.

Attribution Factor

• The attribution factor of responsibility can be subjective or objective.
• Subjective attribution requires proof of accountability, fault, or malice. Anyone causing damage to another through their fault or negligence is obligated to repair the damage.
• In objective attribution, someone seeking exemption must prove an external cause disrupting the causal link (e.g., victim's fault), fault of a third party they aren't responsible for, or a fortuitous event (unforeseeable) or force majeure (foreseeable but unavoidable).
• There's no responsibility when damage results from fortuitous event or force majeure, unless the debtor assumed the consequences, the event occurred through their fault, or they were already in default not caused by fortuitous event or force majeure.
• Fortuitous event: unforeseeable or, if foreseen, unavoidable.
• The obligation extends to damages caused by those under one's dependence or things under one's care.
• For damages caused by things, the owner or guardian must prove lack of fault to be exempt, unless the damage was caused by the risk or defect of the thing, in which case they are exempt only by proving the victim's or third party's fault. The owner or guardian is not responsible if the thing was used against their express or presumed will.

Civil Responsibility of the Notary

• For an unlawful act to exist, it must be contrary to the law. For it to be punishable, it must cause damage to a third party.
• The prime requirement for the duty to answer, is causing damage to a third party.
• No unlawful act is punishable under Argentinian law without causing damage or an external act that could cause it, attributable to its agents' malice, fault, or negligence.
• 'Causality' arises when a specific action can be confirmed to have provoked damage and needs to be adequate.
• Responsibility: capacity of every individual to know and accept the consequences of a freely performed act; its violation entails a sanction for breaching the duty or obligation weighing upon them.
• Common cases of notarial responsibility: kinship, inadequate advice, acting without competence, defect in identifying the grantor, refusing to exercise the function without justified cause, not having the necessary documentation in sight during the act, unpaid tributary obligations, responsibility of the titular notary for the acts of the assigned notary, responsibility for moral damage.
• Lack or insufficiency of: capacity of involved parties in the act, legitimacy of subjects, legality of documented act (fully or partially), substantial legal formalities, expedition and delivery of authentic copies, confrontation between the text of the original and copy, and study of the disposer's title.
• Non-presentation of the deed for registration in the Public Registry or its presentation after the legal term.
• The responsibility of notaries for poor performance can be administrative, civil, penal, or professional, deriving from damages caused to third parties due to non-compliance with the law or poor performance under other laws.
• Notary's responsibility is contractual towards the parties, but extra-contractual towards the true holder of the domain or real right if excluded from the authorized notarial relationship.

Obligations of Means and Results

• The liability of the notary is contractual with the parties.
• BUERES: Those attending a notary's office want a valid deed, making the obligation one of results.
• Los hermanos ALTERINI: Denominate the situation a 'guarantee of security'.
• Professional responsibility of notary is regarded as not of result except when the notary has assumed such an obligation.
• Obligation of doing: consists of doing a certain activity with adequate diligence, without compromising the result.
• Jurisprudential case: Judge BUERES maintained that in case the notary is decieved by a false indentity, does not need to respond in a civil aspect. as that broke the causal link

Penal Responsibility

• Penal responsibility emerges from the public official's action deemed criminal, judged by competent courts as per the laws. The public faith emanating from the notarial instrument is legally protected.
• A notary incurs criminal responsibility if they are the author, co-author, instigator, or participant in crimes defined in the Penal Code within their function.
• Accomplices: assist in the execution of the fact or provide help to the authors in one way or another.
• Instigators: instigate the commision of the crime.
• Also, punishes those who cooperate in any way or those providing the prior promises to the execution of the fact.
• Most related crimes to notarial activity: ideological (293 CP) and material (292 CP) falsehood, fraud (172 and 173 CP), destruction or suppression of documents (294 CP), violation of professional secrecy (156 and 157 CP), omission of public official (249 CP).

Crimes Related to the Exercise of Notarial Function

• The following notes refer to crimes related to the exercise of notarial function.
• Public faith from notarial document is protected by current right (292 a 297 CP). Notary's penal responsibility is the affectation of the content of a real formal structure. The production of damage need not be necessary, being sufficient to prove the existance of such possiblity.
• Ideological deception carries a sentence of one to six years. Refers to whomever inserts or has inserted false statements in a public document.
• A notary can participate, for example, by authorizing an act which afterwards can be used in court to accredit one's claim. If the notary 'inserts' or 'has inserted' false declarations, will incur in said crime.
• Material falsehood is typified in the 292 CP. Whomever alters or makes a false document.
• Modifying an accrediting document carries a penality of three to eight years. Notaries face an aggravated penality in these situations.

Swindle/Defraud

• Punishes with one to six years of prison whomever performs a fraud with a false name, simulated quality, etc.
• Special defraud: the defraud against a contract, refusing to return the object of the contract, or whomever defrauds a document, or defrauds in any way

Destruction or suppression of documents

• Will incur in faked document penality whomever suppresses or destroys a document partially of completely
• Art. 297 CP encompases public documents, and private ones too

Violation of Professional Secrecy

• The penal code punishes whomever that, by reason of it state, reveals a secret that can cause damage, with a fine of 1.500 to 90.000. This can imply also a special disqualification also.
• For those that believe that the notary is a 'public official', art. 157 shall too be applicable.

Omission of Public Official

• Also, is too punished with 750 to 12500, and disqualification to public officials that rejections to perfor an act proper of their office.

Other Cases

• As is natural, the notary can too participate in the comission of other crimes, being or not related to is notarial job. Shall participate as comitter, acolyte, assistor, etc

Administrative Responsibility

• Administrative responsibility derives from incompliment with the fiscal laws, and shall be directed affected by judges that the very laws select for the matter.
• The sanctions that registerred Notaries can be subjected to are: Apercibimiento, Fine, Suspension, Undeterminated Suspension, Desinstitution

Incomliment with fiscal obligations and duties

• Reffering to what is stated on Art. 52 of law 698 SF, depends on the seriousness of the fact.
• Apercibimiento and fine applies to the professional negligences, slight transgressions on functional law, or ethical faults, by the anual value determinated by the Minister.
• Suspension applies in heavier cases, and also to lack of quota fee.
• Indetermined suspension and Destitution correspond to more serious fault in the task.
• The notary will be sanctioned for infringing formal duties. Said sanction will be administrative if it implies only indiscipline or ethical faults, by law.
• Infrattions will be fined of suspended. The administrative council will impose those.

Penal tributary laws

• Laws reffering to money laundring

Penal tributary law

• Law 24769 typifies the crimes of simble and aggravated evasion, fraudolent obtention of fiscal benefits, etc.. and punishes the authors of such act with prison.
• It is punished whomever that, by means deceitful declarations, malice, and/or others, omitts the pay of tributes, as long their value is greater than 100.000 per term annually.

Laws related to money laundering

• Law 25.246 modified the PC, inculding crimes reffering to money laundring
• Art. 20, forces to inform the UIF the public Scribes (inc. 12)
• Art. 21 adds that the people sinalized in art. 20 will be subjected to the following obligations:
  • Take from their clients, requestors, or donators, fehacient documents that grant the correct identification. This shall occur for any activity. Can evade this if amounts are inferior to the mimimum.
  • When clients, requestors, or portators act in reppresentation of others, shall be taken the necesary recaution so to identify whomever acts.
  • All information must be archieved depending on the terms that UIF states.
  • Report any suspicious fact regardless of the amount. Considers as sucpiscious all things that, according from experince and comstom, do not have justification

Responsabilidad profesional.

• Es la emanada del descomplimiento por parte de los escribanos, derivado o no con los principios de etica y leyes fiscales, por lo que afecte a la intitucion notarial.

Organisms that judge them

• Penal responsibility: Penal tribunal will judge it
• Civil responsibility: Civil Courts will judge it
• Professional responsibility: Tribunal of Superintendency will judje it

Tribunal of Superintendence.

• It consist on it chair, president and 2 titulars votes
• This tribunal knows exclusively, derivated of the school dictamen
• Elevated the summary, the tribunal will call for test and pronounces. The fiscal authority shall control it.

Procedure Facculties and Sancions

• Apercibimiento; Fine, Suspension, Undeterminated Suspension; Destitution

Procedure

• Any denounciation the Council School will commence summary with involvement
• It shall terminate in 30 days
• In 5 days, to superintendence it shall elevates

Aplication of sanction

• Multiples must be payed in 10 days.
• Suspension shall be in effect at the term
• Indeterminated Suspension shall mean cancelation
• Escribanos cannot be reincorporated until 5 years since the penality.
• Shall be given acknowledge to the Executive Power
• All shall in subsidiary treated by CPCyCF
• A paralyzed file, shall be archived.