OPEN UNIVERSITY FOR ADULTS

Department of Legal and Political Sciences

Law Degree

THEME:
TASK I

PRESENTED BY:

LUIS APOLINAR CRUZ......MAT. 13-1446

PRESENTED TO:

Carmen Rosa Martinez

SUBJECT:

Notarial Law

Santiago de los Caballeros

DOMINICAN REPUBLIC
NOVEMBER, 2016
 TASK I

1. After researching and studying the origin of Notarial Law,

write a brief essay on the concept, subject of study and the
importance of Notarial Law.

CONCEPT
Notarial Law is the legal framework for the notarial function, it includes
the study of the set of legal norms contained in the various laws that
regulate obligations and modalities to which the active exercise of the
function of a Public Notary. It is understood then, that they are the legal norms
of background and form related to the writing and that simultaneously determine the
powers and duties of the notary in the exercise of his ministry. Notaries are
invested by the State, of public faith to authenticate facts and acts that before
they pass and are granted.

It is the scientific branch of Public Law that, constituting an organic whole,

it certifies in a reliable manner the voluntary and extrajudicial legal relations
through the intervention of an official acting by delegation of power
public.

OBJECT OF STUDY
If it is understood that notarial law is the systematic set of norms,
concepts and principles that regulate everything related to notarial activity,
then the object of it is 'the notarial institution', which is not only done
reference to the organization as a body, with its organic laws, provisions,
qualities, attributions, rights, obligations, and incompatibilities of the notary
but also to the notarial function closely related to general theory of
public document. In addition, to the professional associations that group notaries
and their respective regimes.

The subject of study of Notarial Law will depend on the position taken.
within the doctrinal positions that dispute the supremacy of their
opinions. There are two groups that are:
 1. The Instrumentalists are those who focus their concern on the
notarial public instrument for considering that the essential element,
the main and final study of Notarial Law is the document or act
notarial; and,

2. The Theorists, who concentrate on the object of Notarial Law in the

notary and his conduct, arguing that everything that regulates notarial law
it refers to the agent or protagonist of the notarial function, to their
responsibilities, their obligations, to the regime of the function and to
her procedure.

IMPORTANCE
Notarial law is important because it is responsible for regulations.
of the law of documents, through this, security, value and
permanence, in fact and in law, of the notarial document and its content,
especially to notaries in the exercise of their functions as professionals and
of its relations with the clientele.

2. Establish a difference between public official and public servant.

The difference is that an officer is a person with powers conferred by the

State, in order to authenticate acts and certifications, while the official
he is a worker who performs functions in a public body of the State,
from an autonomous community or local administration, and does not have the authority
to give faith to documents of great value and importance.

3. Research the first Notary Law in the Dominican Republic and

its modifications and write an essay on the content of the
same.

On November 8, 1927, it was enacted by the President of the Republic, Mr.

Horacio Vásquez the Law no. 770 of Notary, published on November 16 of
1927 in the Official Gazette No. 3914.

The Law had 63 articles divided into five chapters that cover the related aspects of the
notaries and their acts, as well as copies and matters related to the protocol and safekeeping
transmission of notarial documents.
This law No. 770, despite having undergone several modifications, remained
regulating notarial practice for more than thirty-five years until it was
completely repealed and replaced by this law, No. 301, which repealed
Law 770 and its modifications, as well as any other that is contrary to it.

On August 7, 2015, the Executive Power enacted Law 140-15, which

repeals Law 301 of June 18, 1964, and other legislations that regulated the
exercise of Dominican Public Notaries will now be regulated by the new
Law 140-15.

Article 3 of the Law established the Dominican Notary College (CODENOT),

as a public law institution, similar to the bar association, while
that Notaries were held civilly liable for the damages they cause
his actions, being the competence to know of that responsibility the
Civil and Commercial Chamber of the Appellate Court of the Judicial Department
where they perform their duties, which may apply as a sanction a
public or private reprimand, fine of between five to ten minimum wages,
temporary suspension for a minimum of six months and a maximum of two years and dismissal or
revocation of appointment, ruling that may be appealed to the Supreme Court
Court of Justice.

Severe penalties are established for Notaries who carry out acts outside of their
competence and jurisdiction, and for real estate matters, the Notary may only
legalize and certify an act for a property located in the place where it is exercised
its functions.

4. What are the principles of Notarial Law.

The principles constitute the midpoint between existence and autonomy.

a branch of law. In the case of Notarial Law, the following can be indicated
next:

a) Principle of Public Faith or Principle of Legal Security: It is the

presumption of veracity in acts authorized by a notary. It is that certainty,
effectiveness, firmness, truth that the public power represented by the notary holds
when he intervenes in every act, document, or contract. He is the authority
legitimate to grant authenticity in the relationship of truth between what is said, the
occurred and documented.
b) Principle of Form: It is the adequacy of the act to the legal form that
through the public instrument it is being documented. The notary must know
exactly how the expression of will by the parties should be externalized,
paying special attention to the validity requirements of each of the figures
legal.

Principle of Authenticity: Through the signature and the seal, it is established that a
fact or act has been verified and declared by a Notary. The instrument
authentic is that which is guaranteed in its certainty, legal security by
having intervened the notary as a representative of the State, therefore
the document will have privileged presumption of truthfulness and will enjoy a
credibility that will test for itself its content.

d) Principle of Immediacy: Direct and immediate relationship of the notary to

to witness events or acts that need to be documented. It is the physical presence in the
same moment when the events occur, and that the notary certifies and
document. The notarial function requires contact between the notary and the parties,
and an approach of both towards the public instrument.

e) Principle of Rogation: The intervention of the notary is always requested, not

He can act on his own or ex officio. Among the functions of the notary is the
to qualify the business or legal act that the parties want to celebrate or the fact
that they decided to verify.

f) Principle of Unity of Action: This principle is based on the fact that the instrument
public to perfect itself in a single act. Establishes simultaneity in time
regarding the different stages, and the witnesses, if applicable, it must be unique and without
interruption or suspension at the time of reading and subsequent subscription of
document or public instrument.

Principle of Registration or Protocol: It is an essential principle of notarization.

The complete preservation of the document for, if necessary, issuing copies.
totals or partials of the same. These authenticated copies have the same value as
the original and enjoy a double presumption of legality and accuracy. It requires the
protocol or stamped, numbered, signed ledger, where
they find all the scriptures arranged chronologically. Upon considering it
as a principle, it is regarded as a necessary element due to the advantages it brings
reports on the guarantees of legal certainty, effectiveness, and public faith.

h) Principle of Consent: Consent is an essential requirement and

it must be free of vices, if there is no consent there can be no authorization
notarial. The ratification and acceptance, which is recorded by the signature of or
the grantors express their consent.
i) Principle of Advertising: The acts authorized by the Notary are public;
Through notarized authorization, the will of the person is made public.
This principle of publicity has an exception, and it refers to acts of last resort.
wills, testaments, and donations causa mortis.

j) Principle of Foreignness: The notary cannot be an interested party in the

document in which he intervenes, he cannot do so regarding his relatives until
the fourth degree of consanguinity.

TASK II

a) -Preparation of a report that contains:

- An analysis of the notarial function, including:

Requirements to be a notary.

Article 5. Law 301 - To be appointed Notary, the following is required:

1st. To be Dominican and to be in full enjoyment of civil and political rights;

2nd. To be at least twenty-five years old;

3rd. To hold the title of Doctor or Graduate in Law or Notary;

4th. To be of good character, which will be verified through certification.

issued by the Trustee of the municipality where the interested party has their residence;

5th. To possess physical and mental capacity for the performance of the functions
notarial

6th. Not having been judicially convicted of a crime or offense against property.
or good customs, which will be verified by a certificate issued by the
Ministry of Justice. (Current Attorney General's Office)

What does Notarial jurisdiction mean?

Art. 10.- Notaries are required to reside in the place that has been assigned to them.
designated by the Supreme Court of Justice to perform their functions, under penalty
of dismissal. But they will be able to act throughout the area of the province to which
belongs to said municipality, when required and duly authorized
by the Court of First Instance of the District to which they belong.

The First Instance judges may grant, for valid reasons, an extension.
of jurisdiction to the notaries of the municipalities of their dependency, so that they
they can act in another municipality outside their District.

Art. 11.- In the municipalities where there is no Notary, or if there is one, he/she
to be absent or temporarily unable to perform their duties, the
The Justice of the Peace will be substituted in accordance with the provisions of this Law. When in
If a municipality has more than one Justice of the Peace, the functions of the Notary will be
exercised by the one designated by the Judge of First Instance of the Judicial District
corresponding.

Article 12.- The Notary who has not opened their office sixty days (60) after
upon being appointed or having been authorized to move to another municipality
they will be considered as resigning.

Article 13.- Notaries may transfer their residence to occupy a vacancy in

another municipality, with authorization from the Supreme Court of Justice.

Legal nature of the notarial function.

The definition provided by Dominican law is as follows: 'The Notary is a'

public official established to receive the acts to which the parties must or
they want to give the character of inherent authenticity to the acts of the authority
public and give them a specific date, keep them in deposit and issue copies of the
the same.

The Notary is a person endowed with an official and public character and adorned with
certain qualities and in which social power delegates the august mission to seal
with its supreme authority the private acts.

They are Notaries, the public officials who authorize contracts and legal acts.
as well as acts of facts that they witness and are aware of in the established cases
by substantive or procedural laws.

The only function of the Notary is not to certify the signatures given by the parties in a
private act that is supposed to manifest the will, but rather its work is oriented
also to give legal shape to the will of the parties through the
instrumentation of authentic acts, since it is understood that the Notary is the one who
has the legal or rights knowledge that the parties are unaware of, and therefore
This should serve as a guide and give shape to those obligations that you wish to have.
they manifest and have proof in writing. Furthermore, by saying that they must give you.
legal form to the will of the parties, it is intended to refer to the notary
with their legal knowledge, after the parties express to him what
they want to commit and the way they would like to do it should guide you in the
relative to the instruments and figures that the law offers them for such purposes.

In addition, this has a special function referred to by the doctrinarians of

prevention of litigation. This is so because, according to the German Dr. Rolf Gaupp, the
impartial legal advice and the legal configuration carried out by the Notary
are intended to prevent conflicts. On the plane of voluntary consensus, one
anticipates the judicial function of resolving conflicts. As an effect, a
lightening of the courts. It also has preventive effects, in advance,
when determining the mandatory and objective content of the contract.

Incompatibilities and prohibitions of the notarial function.

Article 15.- The functions of a Notary are incompatible with any position or
employment of the judicial order, except for those of public defender, and those indicated in the law
of notary and in the inciso a) of article 87 of the Law of Judicial Organization.

Article 16.- Notaries are prohibited, under penalty of dismissal:

a) Exercise their functions outside of their jurisdiction unless it is in one of the cases
provided for in the Law;

b) To document acts and legalize signatures or fingerprints in which they are parties
the same or their relatives and next of kin in a direct line, in any degree, and in line
collateral up to and including the fourth degree, or that contain provisions in favor of
Notary or any of the persons specified above;

c) To become sureties or guarantors in the deeds they execute, or for loans

that would have been done by their mediation, or that they have been entrusted with
to record in an authentic act or under private signature;

d) To be interested in matters regarding which they exercise functions;

e) To place money under their personal name and without the owner's consent,
that they have received, even under the condition of paying interest.
Paragraph I.- Likewise, Notaries are also prohibited, under penalty of
removal, notarizing authentic records or legalizing signatures or fingerprints of
private signed minutes, in which public persons are parties or
private, natural or legal persons or their representatives, to whom services are provided
permanent paid employees, lawyers, advisors or consultants
paid through the system of flat fees or in any other way, or that
contain any provision in relation to the mentioned individuals or
morales.

The provisions in favor of the indicated individuals or legal entities, contained

in minutes writings or legalized by Notaries in violation of prohibitions
indicated in this article will be annulable, but the nullity cannot be invoked.
for the party in whose favor the Notary provides permanent paid services.

Paragraph II.-(Added by Law number 195, of August 10, 1968,

G.O. 9241). Likewise, Notaries are prohibited, under penalty of their dismissal for
Whoever corresponds, to draft authentic acts or to legalize signatures or fingerprints.
in acts under private signature, authorizing transfers of acquired rights
under the conditional sales system of properties corresponding to
apartments in multi-family or single-family buildings, built by the
Dominican Government, or the National Housing Institute, and established in 'Good
of Family", without previously verifying that the requirements have been met.
of the laws that govern it, as well as in all those cases in which
There are restrictive clauses for those transfers in the corresponding ones.
contracts, without having previously obtained the proper authorization from
Executive Power or the General Directorate of the National Housing Institute,
according to the case, and all the required conditions have been met in the
"indicated clauses", added by Law No.195, dated August 10, 1968.

Article 17.- Notaries may not exercise their functions until they have
presented before the Judge of First Instance of the Judicial District of your residence,
oath to faithfully fulfill the obligations of your ministry.

Appointment of the notary

Notaries are appointed by the Supreme Court of Justice for life.

previously fulfilling the requirements established in Law No. 301 regarding
Notaries, except in cases established in this law that result in loss of investiture.

The Notary, once appointed, and within sixty (60) days after
the appointee is required to open their office or study, and whoever does not
he would have opened his studio sixty days (60) after being appointed or
if authorized to move to another municipality it will be considered as
resigning

Loss of the Notary.

1.- By final judicial condemnation for crime or offense against property or the
good habits

2.-Due to becoming physically or mentally incapacitated for the performance of the Notary's duties.
notarial functions, according to the medical legal certification;

3.-For disciplinary dismissal;

4.- By resignation. In the cases expressed in paragraphs 1 and 4 of this article, the
Notary is lost by full right. When the Notary accepts a job or
judicial function will be suspended from his duties as Notary, which
it will recover as soon as it ceases, after participation before the Supreme Court
Justice.

Obligations of the Notary.

1.- For final judicial conviction for crime or offense against property or the
good habits

2.-Due to the Notary's physical or mental incapacitation to perform their duties.

notarial functions, according to legal medical certification;

3.- For disciplinary dismissal;

4.- By resignation. In the cases expressed in sections 1 and 4 of this article, the
Notarization is lost by full right. When the Notary accepts a job or
the judicial function will be suspended from their duties as Notary, which
will be regained as soon as it ceases, prior participation to the Supreme Court of
Justice.
Investigate whether the new law 140-15 on Notaries repeals Law 145 of 04
from June 1971, which allows Justices of the Peace to receive sworn statements
written in quintuple duplicate for successor procedures.

Law 140-15 on Notaries repeals Law 145 of June 4, 1971, if

allows Justices of the Peace to receive sworn written statements in five copies
for succession procedures, as it is a judicial procedure or
Notarial, depending on the cases, that is processed with the purpose of obtaining a
declaration about who the legal heirs of a person are, according to the
precepts on legitimate succession established in the Civil Code. Thus, with the
the declaration of heirs verifies who the person/people are that have the right to
the inheritance of the deceased.

The processing of this declaration will be carried out before the Notary or before the Judge.
depending on the relationship of kinship that exists between the deceased and the
heirs.

c) An analysis of the public functions of Dominican consuls

according to articles 7 and 8 of law 716 of the year 1944; and article 5 of the law
301 on notarization.

Artículos 7 y 8 de la ley 716:

Article 7 states that consular officials have the capacity, within the
limits of their jurisdiction, to receive all acts to which the parties must
or want to give it the character of authenticity for its compliance and execution in the
national territory.

From this, it is understood that consular officials are individuals endowed with.
ability to carry out the related procedures and meet the needs
of the people who require their services to process cases related
with other countries; therefore, their functions are of great importance for the
social development of the Nation.

Article 8 explains that these acts will be executed by the officials.

consular in accordance with the laws governing the practice of Notary in the
Republic, within the limitations indicated in this chapter.

This constitutes a statement of great value, because the officials

consular officials must verify that these documents have previously undergone
hands of a notary, who is the official responsible for documenting acts
reliable, which confirms to the consul that they are true and can be
processed securely, with no suspicion of falsehood.

Article 5 of Law 301 on Notaries:

Article 5 states that to be appointed as a Notary, one must: 1st Be Dominican and
to be in full enjoyment of civil and political rights; 2nd. To have at least
twenty-five years old
or of Notary; 4th. To be of good customs which will be evidenced by means of
certification issued by the Trustee of the municipality where the interested party has their
address; 5th. Possess physical and mental capacity for the performance of the
notarial functions; 6th. Not having been judicially convicted of a crime or
crime against property or good customs, which will be proven by
certification issued by the Secretary of State for Justice. (Current Attorney General
General of the Republic.

With this, it is understood that a notary must be a person who meets

high academic and moral requirements, since in order to become a notary one must give testimony
important documents that can benefit or affect various
people. This is why becoming a notary is difficult and at the same time it is a
prestigious profession.