1. GENERAL
In this headquarters we will study the nullity of notarial instruments, which is an issue that must be taken into account not only by public notaries, but also by other notarialists, who are specialists and experts in notarial law, who must possess some knowledge, which allows them to know the cases in which a notarial instrument is infected with nullity, for example the opportunities in which there is nullity in a public deed, testimony, party, ballot, among other notarial instruments.
It should be taken into account that in some cases civil law applies, which is also known by another name, such as “common law”, which are names or names of the same branch of law, which is located within of private law, within which party agreements and autonomy of the will have a greater margin of application. Taking into account that the nullity of notarial instruments must take into account civil law, in this seat we will insert some notions of this branch of law, but only referring to the nullity of notarial instruments, which constitutes the subject matter of study, and exists for example when a notary party finds erasures or additions or amendments,which has the consequence that it is null and the same rule exists in the case of the notarial protocol, which is in charge of each of the notaries public, for example if a public deed or a will by public deed, or a testament closed becomes adulterated, it is evident that in this case it can be declared null, and even in many cases this is not necessary, but in such a case it is not taken into account, for example when a notarial party has amendments it cannot be register in the registry areas of the sunarp, which is a criterion unanimously accepted by public registrars, but this not only occurs in Peruvian law, but also in foreign law, on which law studies can be carried out compared,and in this case we refer to international comparative law, such as an international decaliteral micro-comparison. And we take advantage of the headquarters to record that this legal discipline mentioned is not always international, for example the comparison of the nullity of notarial instruments in Peruvian and German law, but that on other occasions it is national and foreign. Within the first, the case of this issue can be cited in two different centuries, while within the second we state that we can study this issue in French law, which is known in Peruvian law as foreign law.for example, the comparison of the nullity of notarial instruments in Peruvian and German law, but on other occasions it is national and foreign. Within the first, the case of this issue can be cited in two different centuries, while within the second we state that we can study this issue in French law, which is known in Peruvian law as foreign law.for example, the comparison of the nullity of notarial instruments in Peruvian and German law, but on other occasions it is national and foreign. Within the first, the case of this issue can be cited in two different centuries, while within the second we state that we can study this issue in French law, which is known in Peruvian law as foreign law.
Every notarialist must know the civil law and this also occurs in the nullity of notarial instruments, that is, the notarial law must be studied together with civil law, because the latter has had a strong influence on notarial law, in such a way that The grounds for nullity of notarial legal acts are governed by the rules of nullity of legal act contained in civil law, therefore, any notary public who wishes to know the nullity of notarial instruments must study civil law, which constitutes an important branch of private law, which allows you to know and control the grounds for nullity, however, we must bear in mind on this occasion that a notarial instrument is not the same as a legal act executed before a public notary, in that sense,Within the first we can cite the case of the public deed, testimony, notarial part, ballot, certified copy, among others, and within the second mentioned notarial term we can take into account the sale, donation, lease, exchange, loan, leasing, mortgage, movable security, antichresis, know-how, franchise, but all of them are signed before a notary public, that is, contracts or personal rights and real rights signed before a notary public are abundant, however, those mentioned are not the only ones, but they are only the main ones, according to our point of view.Movable security, antichresis, know-how, franchise, but all executed before a public notary, that is, contracts or personal rights and real rights celebrated before a notary public are abundant, however, those mentioned are not the only ones, but are only the main, according to our point of view.Movable security, antichresis, know-how, franchise, but all executed before a public notary, that is, contracts or personal rights and real rights celebrated before a notary public are abundant, however, those mentioned are not the only ones, but are only the main, according to our point of view.
2. IMPORTANCE OF THE TOPIC
The importance of null notarial instruments is an issue that deserves to be studied not only in judicial headquarters, but also in other offices, within which we can take into account the registry office, because all registry officials must know their implications, such as that null notarial instruments cannot have legal effects. And we move to judicial law, to specify that a null testimony cannot serve as the basis for a judicial process of guarantee execution, which is an issue that must be studied in detail by judicial officials.
This topic is very important because it allows us to study the cases in which the notarial instruments have no effect, and one of the immediate consequences is that they cannot be the origin of a registration in the registry areas, therefore, if a Notarial instrument null to the registry, it must be qualified in the registry always in a negative sense, that is, it must fall on this title negative registry qualification, therefore, it should not be registered, and the Peruvian registry jurisprudence has built a series of theories, which They make us warn that according to some resolutions of the registry court it must be observed, while according to others it must be crossed out.
The nullity of notarial instruments is an important issue, and for this reason it should be known not only by notarialists, however, there are few publications in Peruvian and foreign law, which means that the doctrine has not noticed its real importance, for Therefore, we suggest its study, in a medium in which it is necessary to propose research topics for legal researchers.
Nullity is not always clearly noticed by legal operators and jurists, but on some occasions a series of arguments must be built to sustain it, which is an issue that is taken into account as a gray area, because it is not It is evident, therefore, these cases must be eliminated progressively, which results in a reduction in transaction costs, because if it is easier to access the information, it implies that the information costs decrease, that is,, strong incentives must be applied so that the assumptions or cases of nullity are clear and do not give room for complicated interpretations, thus leaving little to the autonomy of legal operators and jurists, which results in efficiency in the law.But nothing prevents this and other issues from being studied in detail, which will result in the notary doctrine evolving, in an environment in which new doctrinal and jurisprudential studies are necessary, among others, because doctrine and jurisprudence do not They are all the right, but only a part of it, and even some people confuse the legal term "legislation" with "right", which are different, existing between them a part-to-all relationship, that is, the legislation is or it constitutes only a part of the law, and this occurs in law in general and in all its branches, therefore, it also occurs in notarial law.in an environment in which new doctrinal and jurisprudential studies are necessary, among others, because doctrine and jurisprudence are not all of the law, but only a part of it, and some people even confuse the legal term "legislation" with " law ”, which are different, there being a part-to-whole relationship between them, that is, legislation is or constitutes only a part of the law, and this occurs in law in general and in all its branches, therefore, it also occurs in notarial law.in an environment in which new doctrinal and jurisprudential studies are necessary, among others, because doctrine and jurisprudence are not all of the law, but only a part of it, and some people even confuse the legal term "legislation" with " law ”, which are different, there being a part-to-whole relationship between them, that is, legislation is or constitutes only a part of the law, and this occurs in law in general and in all its branches, therefore, it also occurs in notarial law.In other words, the legislation is or constitutes only a part of the law, and this occurs in law in general and in all its branches, therefore, it also occurs in notarial law.In other words, the legislation is or constitutes only a part of the law, and this occurs in law in general and in all its branches, therefore, it also occurs in notarial law.
Another reason for this issue to be important is that it allows us to know the cases in which a notarial instrument should not be issued, because there are grounds for nullity that establish it, for example, when the grantors have not signed in the public deed, which for some is known not as a case of nullity of a notarial instrument, but is known as a case of nonexistence. Which brings as a necessary consequence that of said public deed it cannot be certified that the grantors signed, and in the event that a notarial transfer is issued, such as a testimony, part or ballot, the notary must be careful enough to make it quite evident that the grantors did not sign in the matrix,which will serve for third parties to know that the public deed has not been concluded in a satisfactory or normal way, and in this way we will not have notarial instruments that confuse people and especially authorities that base their decisions and resolutions on the indicated instruments, for example, judges base their decisions in some cases on protests, certified copies, signature legalizations, reproduction legalizations, transfers, among others. For example, this occurs in some arbitration processes and executive judicial processes for the collection of bills of exchange, promissory notes, invoices, checks, bank certificates of foreign and national currency, certificates of deposit, warrants, negotiable mortgage securities, knowledge of Shipping, waybills, securities,the latter being not only stocks, bonds and commercial papers, but also constitute others, which are detailed in the current Peruvian securities law, which summarizes the previous exchange regulations, and the previous Peruvian securities law, was a law that regulated only some securities, which brought as a consequence that at that time in Peruvian law the transaction costs in exchange law were too high, since the information costs were high, since it was very complex to know and study the other securities, because their regulations were too dispersed and the doctrine had been quite sparing on these issues.which are detailed in the current Peruvian securities law, which summarizes the previous exchange regulations, and the previous Peruvian securities law, was a law that regulated only some securities, which resulted in that at that time In Peruvian law, transaction costs in exchange law were too high, due to the high information costs, since it was very complex to know and study the other securities, because their regulations were too dispersed and the doctrine had been quite sparse on these issues.which are detailed in the current Peruvian securities law, which summarizes the previous exchange regulations, and the previous Peruvian securities law, was a law that regulated only some securities, which resulted in that at that time In Peruvian law, transaction costs in exchange law were too high, due to the high information costs, since it was very complex to know and study the other securities, because their regulations were too dispersed and the doctrine had been quite sparse on these issues.which brought as a consequence that at that time in Peruvian law the transaction costs in exchange law were too high, since the information costs were high, since it was very complex to know and study the other securities, because its regulations were too scattered and the doctrine had been quite sparing on these issues.which brought as a consequence that at that time in Peruvian law the transaction costs in exchange law were too high, since the information costs were high, since it was very complex to know and study the other securities, because its regulations were too scattered and the doctrine had been quite sparing on these issues.
The subject studied is not only important within procedural law, but also in business, corporate and commercial law, therefore, employers are required to know this subject and be informed by their lawyers on the subject studied, so that they are aware that the notarial instruments in some cases are null, which is an issue that they should be aware of, for example when they are shown testimonies of the transfer of participations or shares, or of the transfer of business concentrations, which are intended for profit, which are a type, variety or class of concentrations, because the others are non-corporate concentrations.
Registry, procedural, business, exchange and certificate law are not the only branches of law in which it is necessary to know and study the nullity of notarial instruments, but there are also others, within which we can cite the case of judicial law., criminal and criminal procedure, for example there are criminal proceedings that are processed for having adulterated notarial instruments, or for having initiated legal proceedings with null notarial instruments, and in any case the null instrument for some is different from the falsified instrument.
We must specify in this seat that criminal prosecutors must clearly distinguish between a null notarial instrument and a false notarial instrument, so as not to be misled, which occurs especially in judicial headquarters, and in criminal and mixed prosecutor's offices, when the latter They have criminal matters among their competences.
This issue is also important because it must be known by the police, because they must know how to determine the opportunities in which a notarial instrument is valid, null or false, which is important in investigations that deal with the crime against public faith, which is a crime that is foreseen and punished in the Peruvian Penal Code of 1991, and also existed in the Peruvian Penal Code of 1924, therefore, regarding this crime, comparative law studies can be carried out. which are different studies from the history of law, in addition, comparative law is not exhausted in two criminal codes nor does the history of Peruvian law begin in 1924, but are broader issues that deserve to be taken into account for future research,which should motivate important publications not only in Peruvian law.
In other words, one of the reasons why this topic is important is because it transcends other branches of law and legal disciplines, for example it transcends legal research, because it is possible to investigate the subject, it also transcends the methodology of the legal research, because you can develop and write legal research projects on this important topic. It also transcends legal pedagogy, legal education and law teaching, because pedagogy can be done on this subject, and it is possible to educate and teach about it.
Another reason for this topic to be important is that all sources of law cover it, that is, we can affirm that not only does legislation exist on the subject studied, but there is also on the same jurisprudence, enforceability, doctrine, principles, social reality, manifestation of will, among others.
As an additional issue, it should be taken into account that this issue turns out to be quite important because in some cases something improper or illegal happens, for which null notarial instruments are registered in the registry offices, therefore, those mentioned continue being null, but in accordance with the registration principle of legitimation, the content of the registration entries are presumed true and produce all their effects as long as their content does not vary, which constitutes a registration principle enshrined in Peruvian law, therefore, in the raised assumption there are contradictory or implicating civil and registry regulations, but we must state that the former refer to the notarial instrument, while the latter refer to the registration entries.And the problem is aggravated if we study this problem together with the registry principle of registry public faith, which is enshrined in some registry systems, and those that establish it, do not always establish the same requirements, for example some establish as a requirement that the acquisition was for consideration, while others do not establish this requirement. Therefore, we must put on record that this registration principle is misleading in some cases, within which we can cite the case of null notarial instruments registered in the registry offices, which constitutes a similar issue but not the same as another issue, which is known as "non-existent registered notarial instruments", and also the accessory follows the fate of the main thing, therefore,From a certain point of view, registry entries are accessories to titles (but this only in causal registry systems), which in some cases are null notarial instruments.
3. DEFINITION OF NOTARIAL INSTRUMENT
Notarial instruments are those granted before a notary public, in the exercise of their functions, therefore, public deeds, certified copies, reproduction legalizations, signature legalization, legalization of the opening of books, transfer certificates, among other notarial instruments, which vary in comparative law, and for this purpose we must bear in mind that the notarial systems are Latin, Anglo-Saxon and administrative, and within the second the notaries have quite limited functions, or in other words, they have functions quite restricted, which in some cases can be declared void, therefore, in this headquarters we study the nullity of said instruments in order to contribute to the development of notarial law,which has received important contributions from civil law, both Peruvian, and within the latter is located the Peruvian Civil Code of 1984, the Peruvian Civil Code of 1936, and the Peruvian Civil Code of 1852, of which only the first is in force of those indicated. In Spanish law the Spanish Civil Code of 1889 is in force, in German law the German Civil Code of 1896 is in force, in force since 1900, which is known as BGB, in French law the French Civil Code is in force of 1804, known as the Napoleon Code, in Italian law the Italian Civil Code of 1942 is in force, known as the private law code, because it also regulates part of commercial law, among other examples that can be provided of foreign law,with which comparative law can be done, which constitutes an important legal discipline, which within Peruvian law has deserved few studies. But we must put on record that Civil Codes are not all civil law, but are part of the law and the latter is a part or source or element of the law.
4. REGISTRY QUALIFICATION
The registry qualification constitutes a value judgment, by which public registrars determine whether or not a title accesses the registry, and it also exists in formal advertising, that is, the registry qualification is of two types, which are: qualification entry registry and exit registry qualification, of which the best known and studied is the first, while the second is little known and has led to few publications, especially in Peruvian law. Registry law studies, among other issues, the registry qualification, and the nullity of notarial instruments must be taken into account within it, however, they are not the only null instruments that can be presented to the registry, but there are others, which can be judicial, consular and administrative,Furthermore, public registrars are not the only ones before whom notarial instruments are presented, but there are also other officials, among which we can take into account other public notaries, judges, prosecutors, consuls, among others. However, we must specify at this headquarters that the registry does not declare nullity of any document or any instrument, and in this vein it does not declare the nullity of any notarial instrument, whatever its type, class or variety, whatever The consequence is that in practice it does not declare the nullity of any public deed, testimony, notarial part, ballot, certified copy, signature legalization, among other notarial instruments.within which we can take into account other notaries public, judges, prosecutors, consuls, among others. However, we must specify at this headquarters that the registry does not declare nullity of any document or any instrument, and in this vein it does not declare the nullity of any notarial instrument, whatever its type, class or variety, whatever The consequence is that in practice it does not declare the nullity of any public deed, testimony, notarial part, ballot, certified copy, signature legalization, among other notarial instruments.within which we can take into account other notaries public, judges, prosecutors, consuls, among others. However, we must specify at this headquarters that the registry does not declare nullity of any document or any instrument, and in this vein it does not declare the nullity of any notarial instrument, whatever its type, class or variety, whatever The consequence is that in practice it does not declare the nullity of any public deed, testimony, notarial part, ballot, certified copy, signature legalization, among other notarial instruments.and in this vein it does not declare the nullity of any notarial instrument, whatever its type, class or variety, which results in the fact that in practice it does not declare the nullity of any public deed, testimony, notarial part, ballot, certified copy, signature legalization, among other notarial instruments.and in this vein it does not declare the nullity of any notarial instrument, whatever its type, class or variety, which results in the fact that in practice it does not declare the nullity of any public deed, testimony, notarial part, ballot, certified copy, signature legalization, among other notarial instruments.
5. DUPLICITY OF GAMES
Now we will make some comments on the duplication of items, which constitutes an important issue of registry law, with direct implications for the nullity of notarial instruments, and in this sense we must specify that the duplication of items that in Peruvian law is decided by registry, In Spanish law it is decided judicially, which should motivate comparative law studies, therefore, we can conclude that when the registration item or items is closed in this procedure, it implies a declaration of nullity, therefore, it must be followed in court and not at the registry office, which we record in order to learn more about this legal issue. And this issue is related to the nullity of notarial instruments,because some duplicate items contain registration entries extended in merit to the indicated instruments. That is to say, comparative law provides important contributions to Peruvian law, and this not only occurs in civil law, but also in other branches of law, within which we can cite the case of notarial law, in which case we will be before the Comparative notarial law, but some opportunities not only makes comparative law between notarial law, but between it and another branch or branches of law, for example, it can be made comparative law between notarial law and civil law, or between notarial law and law registry, civil and civil procedure. Since comparative law is not always bilateral, but is sometimes polilateral,For example, when comparative law is made trilateral, quadrilateral, pentaliteral, sextaliteral, septaliteral, octaliteral, nonaliteral, decaliteral, among other cases of comparative law, on whose legal discipline we have published several books and legal articles on Peruvian and foreign law. And we must specify that the comparison is not all the comparative law, but only one of the more than fifteen parts of it, which is little known by almost all notarialists, but is well known by comparatists, which is the denomination with which specialists in comparative law are known.on whose legal discipline we have published several books and legal articles on Peruvian and foreign law. And we must specify that the comparison is not all the comparative law, but only one of the more than fifteen parts of it, which is little known by almost all notarialists, but is well known by comparatists, which is the denomination with which specialists in comparative law are known.on whose legal discipline we have published several books and legal articles on Peruvian and foreign law. And we must specify that the comparison is not all the comparative law, but only one of the more than fifteen parts of it, which is little known by almost all notarialists, but is well known by comparatists, which is the denomination with which specialists in comparative law are known.
6. DEFINITION OF NULLITY
An important item within the nullity turns out to be its definition, with which we can determine its scope of application as well as its importance, not only within Peruvian law, but also in foreign law, and compared.
Nullity is a civil sanction that is imposed judicially, when certain causes are incurred, which are established in the law of each country. And within the Roman-Germanic legal family or civil law, the causes are contained in the Civil Code of each country, which is a legal norm that does not exist in the legal systems that are part of the Anglo-Saxon legal family or common law., within which the main legal systems are the American system and the English system.
7. DEFINITION OF CANCELLATION
Now we will take into account the voidability, which is a type of nullity, which is known as relative nullity, which must also be taken into account in this seat.
Nullification is a class of nullity, which is well known in Peruvian law, even in undergraduate law studies, and in this sense, undergraduate students are quite familiar with this important legal institution.
8. FALSEHOOD
Now we will study falsehood, which constitutes an important notarial institution, which must also be taken into account in other branches of law, within which we can cite the case of civil procedural law, criminal procedure, labor procedure, administrative procedure, procedural, civil, among other branches of law, that is, it is an issue with implications in many branches of law, which results in placing it in a fairly important place in the study of law, in this sense we recommend its study and At present we provide information that we hope will be useful not only in academic settings, but also in other kinds of locations.
Falsehood has little development within Peruvian law, and for some it cannot be sued within the indicated one, because there is no legal norm or legal basis in the indicated one, which meets the requirement of the will of the law studied by some specialists in the law. civil procedural law, while for others it is a type, variety or kind of nullity, and for others it is different from nullity, and they even affirm that it is incompatible to accumulate both claims in an accessory way, which is well known and studied by the specialists in judicial law, the latter being part of civil procedural law, which is also part of procedural law. That is, this information must also be taken into account in the invalidity of notarial instruments,and in this order of ideas there is a subject with direct implication in it, such as the falsification of notarial instruments, which are subjects with great importance and a lot of relation to each other, and on the latter there is little information in Peruvian law.
9. NULLITY AND FALSE TACHA
When there is a document that is null or false, in some cases it is crossed out alleging said causes, however, the doctrine has come to establish that the same document cannot be null and false, and in these cases it is either null or false. false, therefore, in doctrine it is held that the blemishes by which a document is crossed out at the same time as null and false should not succeed, but can be crossed out alleging both assumptions, or causal, but in an alternative way, therefore, the two causes of blemish cannot be accumulated in an accessory way, but as we said previously in an alternative way.
10. DEFINITION OF INEFFICIENCY
Ineffectiveness is a civil sanction that has two meanings in doctrine. For the first, the legal act does not take effect against some people or against all. And for the second it is a broader legal term than nullity, also including resolution and termination, as follows: Ineffectiveness covers the following cases:
1) Cases of ineffectiveness against all:
Structural inefficiency:
Absolute nullity, Relative nullity.
Functional inefficiency:
Rescission
Resolution.
2) Cases of ineffectiveness against certain people
11. INEXISTENCE
Non-existence is when there is no legal act, and therefore does not require to be declared invalid, while nullity implies the existence of a legal act. Therefore, we can affirm that nullity is different from non-existence, however, in Peruvian law only the first of those mentioned is regulated, but the second is not, however, it was the subject of a project when it was drafting what is now the Peruvian Civil Code of 1984. As the non-existence of the legal act in Peruvian law is not regulated, a series of problems is generated, which are solved by going to other sources of law, among which we can cite the case of doctrine, jurisprudence, enforceable, custom, principles, among others,which results in an increase in transaction costs, due to the increase in information costs, which are studied by the economic analysis of law, which for some is a method, while for others it is a legal discipline, which each day it is acquiring greater importance and diffusion. However, in recent years there have been publications that criticize it because it ignores values, and in this sense, it is held within it that contracts should only be fulfilled when there is economic efficiency, but not in other cases.However, in recent years there have been publications that criticize it because it ignores values, and in this sense, it is held within it that contracts should only be fulfilled when there is economic efficiency, but not in other cases.However, in recent years there have been publications that criticize it because it ignores values, and in this sense, it is held within it that contracts should only be fulfilled when there is economic efficiency, but not in other cases.
12. VALIDITY
All legal acts that are valid are considered existing, therefore, if a contract is valid, its non-existence cannot be alleged, because they would be two statements that would be implicating or contradictory. The Peruvian Civil Code of 1984 establishes in its article 140 that the legal act is the manifestation of will destined to create, regulate, modify or extinguish legal relationships. It is also stated that for its validity it is required: 1.- Capable agent, 2.- Physically and legally possible object, 3.- Lawful purpose, and 4.- Observance of the prescribed form under penalty of nullity.
That is to say, the cited norm indicates the legal requirements for the validity of the legal act, which according to this cited norm are four, which are well known within Peruvian law, however, we cite them to study them jointly with which it can be taken into account not only in academic headquarters, but also in judicial, registry, administrative and consular headquarters.
The validity of the legal act is a case that many opportunities go unnoticed, therefore, we dedicate these lines to it in order to have information that is useful for all readers.
Notarial instruments in some cases are valid, that is, in some cases there is validity of the legal act, while in other cases there is no validity, in this case we will be facing a case of invalidity of the legal act.
That is, notarial law is closely related to civil law, therefore we study the latter at the time of studying the first and in this way we can agree rules of both branches of law, that is, rules of notarial law with rules of law civil.
Many civilistas are considered as chemically pure, for which it is stated that they are not infected with knowledge of other branches of law, within which notarial law can be considered, therefore, these superspecialists only take into account one branch of the law. right, but they pay a very high price, as it is to not see the forest. In the practice of law, not only one branch of the law must be taken into account, but all those considered as an area of knowledge in order to be able to investigate legal issues with solvency, which is only provided when all branches of the law are taken into account. law that relate to the subject matter of study.
13. INVALIDITY
Invalidity is of two classes, which are the following: absolute invalidity or nullity, and relative invalidity or voidability.
When the legal act is studied, it is affirmed that it may have validity or invalidity, therefore, there are two classes, types or varieties of legal acts, which must be taken into account for an adequate study of this important legal issue, such as invalidity, which must be studied within the legal act, and in Peruvian law there is a book in the Peruvian Civil Code of 1984 that regulates the legal act, on the subject of which several books have been published, which we have taken into account to the writing of this research work.
14. CLASSES OF NULLITY
By the first classification, the nullity is of two types that are the following: absolute nullity and relative nullity, the first the doctrine has called nullity itself, while the second is known by the name of nullity.
The second classification divides or classifies annulments into total and partial, this classification being less known and this also occurs in Peruvian law.
15. ABSOLUTE NULLITY OF LEGAL ACT
Article 219 of the Peruvian Civil Code of 1984, lists the causes of absolute nullity of the legal act in Peruvian law, indicating that the legal act is null: 1.- When the agent's manifestation of will is missing, 2.- When there is practiced by an absolutely incapable person, except as provided in article 1358, 3.- When its object is physically or legally impossible or when it is indeterminable, 4.- When its purpose is illegal, 5.- When it suffers from absolute simulation, 6. - When it does not review the prescribed form under sanction of nullity, 7.- When the law declares it null, and 8.- In the case of article V of the Preliminary Title, unless the law establishes a different sanction. The Peruvian Civil Code of 1936 also indicated the grounds for nullity, specifying in its article 1123 that the legal act is null: 1.When it has been practiced by an absolutely incapable person, 2. When its object is illegal or impossible, 3. When it does not take the form prescribed by law, unless it establishes a different sanction, and 4. When the law declares it null.
In other words, article 219 of the Peruvian Civil Code of 1984 has as its immediate national legislative antecedent article 1123 of the Peruvian Civil Code of 1936, therefore, between the two you can do comparative law and you can also study the history of law, which for older people Elements of judgment can also be taken into account other civil codes on this issue, such as the causes of absolute nullity, but the codes and to address broader issues, the law, is a part or source of law.
16. RELATIVE NULLITY OF LEGAL ACT
On the other hand, article 221 of the Peruvian Civil Code of 1984, lists the cases in which there is relative nullity of the legal act in Peruvian law, specifying that the legal act is voidable: 1.- Due to relative incapacity of the agent, 2.- For vice resulting from error, fraud, violence or intimidation, 3.- By simulation, when the actual act that contains it damages the right of a third party, and 4.- When the law declares it voidable. The Peruvian Civil Code of 1936 also established grounds for voidability, which were enshrined in its article 1125, which stated that the legal act is voidable: 1. Due to relative incapacity of the agent, and 2. Due to vice resulting from error, fraud, violence, intimidation, simulation or fraud.
Article 221 of the Peruvian Civil Code of 1984 has as its immediate national legislative antecedent Article 1125 of the Peruvian Civil Code of 1936, however, we must state that there is little similarity between the two, and in this order of ideas the current Code contains greater assumptions of application.
17. TOTAL NULLITY
There is total nullity when the nullity of the entire legal act is declared, for example when the nullity of all the clauses that appear in a minute or in a public deed is declared. This type of nullity is the best known within Peruvian law, therefore it requires few details, in a medium in which there are several sources of information, about such an important legal institution, such as total nullity.
18. PARTIAL NULLITY
On the other hand, there is partial nullity, when some of the clauses or parts of the legal act are considered as not included. This issue is regulated in Article 224 of the 1984 Peruvian Civil Code, which establishes that the nullity of one or more of the provisions of a legal act does not harm the others, provided they are separable. The second paragraph establishes that the nullity of singular provisions does not matter the nullity of the act when they are replaced by peremptory norms. And in the third paragraph it is stated that the nullity of the main obligation entails that of the accessory obligations, but the nullity of these does not give rise to that of the main obligation. That is, in some cases of invalidity there is total invalidity, while in other cases of those indicated there is partial invalidity,which is widely known by some lawyers, according to which it should be applied above all in the notary and registry offices, and this is not unanimously accepted by the doctrine, however, we study this issue, because it is applied by many registrars especially from various presentations by the former National Superintendent of Public Registries, Carlos Cárdenas Quirós, which have been questioned by many lawyers not only in the city of Lima, because the registry should only register valid legal acts and not Invalid and in Peruvian law few authors distinguish the legal term registration entry, with the terms registration and registration annotation, which is known as annotation in part.According to which it must be applied above all in the notary and registry offices, and this is not unanimously accepted by the doctrine, however, we study this issue, because it is applied by many public registrars, especially from various presentations of the Former National Superintendent of Public Records, Carlos Cárdenas Quirós, which have been questioned by many lawyers not only in the city of Lima, because the registry should only record valid legal acts and not invalid ones and in Peruvian law few authors distinguish the legal term registration entry, with the terms registration and registration annotation, which is known as annotation in part.According to which it must be applied above all in the notary and registry offices, and this is not unanimously accepted by the doctrine, however, we study this issue, because it is applied by many public registrars, especially from various presentations of the Former National Superintendent of Public Records, Carlos Cárdenas Quirós, which have been questioned by many lawyers not only in the city of Lima, because the registry should only record valid legal acts and not invalid ones and in Peruvian law few authors distinguish the legal term registration entry, with the terms registration and registration annotation, which is known as annotation in part.because it is applied by many public registrars, especially from various presentations by the former National Superintendent of Public Records, Carlos Cárdenas Quirós, which have been questioned by many lawyers not only in the city of Lima, because the registry should only record the Valid legal acts and not invalid ones, and in Peruvian law few authors distinguish the legal term registration entry, with the terms registration and registration annotation, which is known as annotation in part.because it is applied by many public registrars, especially from various presentations by the former National Superintendent of Public Records, Carlos Cárdenas Quirós, which have been questioned by many lawyers not only in the city of Lima, because the registry should only record the Valid legal acts and not invalid ones, and in Peruvian law few authors distinguish the legal term registration entry, with the terms registration and registration annotation, which is known as annotation in part.because the registry should only register valid legal acts and not invalid ones and in Peruvian law few authors distinguish the legal term registration seat, with the terms registration and registration annotation, which is known as annotation in part.because the registry should only register valid legal acts and not invalid ones and in Peruvian law few authors distinguish the legal term registration seat, with the terms registration and registration annotation, which is known as annotation in part.
19. NULLITY OF CONTRACT
In Peruvian law contracts can be declared void, due to the grounds of nullity of the legal act, in this sense, sales can be declared void when the seller is a conjugal partnership and only one of the spouses intervenes in the contract, that is,, one of those mentioned does not intervene, not even as a proxy or agent.
20. INSTRUMENT AND LEGAL ACT
The instrument is not the same as the legal act contained within the first one, in this order of ideas we can point out that the instrument can be a public deed or a minute or a private instrument, while the legal act can be a sale, donation, exchange, leasing, loan, leasing, franchise, brokerage, know-how, business leasing, among other contracts. That is, in some of these cases the instrument will be of a notarial type, which are known as notarial instruments, being a class, variety or type of them the public deed, of which there may be transfers, which are the testimony, part and ballot, which can be transcripts or photocopies of the public deed, which is part of the notarial protocol.
21. NULLITY OF THE LEGAL ACT AND THE DOCUMENT CONTAINING IT
Now we will study another issue, which is known as nullity of the legal act and the document that contains it, which is an issue that must be studied within the legal act. The nullity can be declared of the legal act, or of the document that contains it, in this sense, the act can subsist, even if the document is declared null. The Peruvian Civil Code of 1984, establishes in its article 225 that the act should not be confused with the document that serves to prove it, and also indicates that the act may subsist even if the document is declared void. Article 237 of the Peruvian Civil Procedure Code of 1993, establishes that the document and its content are different, and it is also stated that it may subsist even if the first is declared invalid. These norms agree with each other, and in this sense,We can affirm that they are not contradictory among themselves, in addition we must point out that by the wording of the indicated ones, their application is facilitated and it is made agile, because if only one of the indicated or both is consulted, the result or answer will always be the herself. The Peruvian Civil Code of 1936 stated in its article 1131 that the act should not be confused with the document that serves to prove it, indicating that the act may subsist even if the document is declared null due to any defect. In other words, article 252 of the Peruvian Civil Code of 1984, article 237 of the Peruvian Civil Procedure Code of 1993 and article 1131 of the Peruvian Civil Code of 1936 agree on this issue, which constitutes an important contribution to Peruvian legislation on nullity.,that for some it should be studied and applied within another topic that they consider to be broader, such as ineffectiveness, with which other authors disagree.
This topic is known by some as reflex nullity, that is, for some authors this would be its legal name or nomen juris, which allows studying this topic in other sources of information which are not only books, but can also be magazines, newspapers, web pages, blogs, among others, that is to say, the term quoted is different or has different implications from the term “bibiliography”, since the latter only covers books.
22. NULLITY CLASSES FOR SALVADOR VASQUEZ OLIVERA
Now we will review important national doctrine, which has provided and contributed to the legal culture important knowledge, with which nullity can be classified, which constitutes important knowledge that all lawyers must know, study and learn, in order to apply adequate knowledge, which is not superficial, but takes into account all the items within the subject matter of study, and in this sense, we can affirm that the nullity is of various types, classes or varieties, within which we can cite the following:
1) Contract nullity.
2) Nullity of legal act.
3) Nullity of legal business.
4) Nullity of marriage.
5) Invalidity in general.
6) Express or textual nullity of the legal act.
7) Manifest nullity of a legal business.
8) Partial nullity of legal acts.
9) Relative nullity of legal acts.
10) Virtual or tacit nullity.
Now we will make brief comments, on the occasion of this important bibliographic appointment, to which we have resorted, which is typical of internal comparative law, and to be more exact is an internal reception, which is carried out or carried out from doctrine, to be taken also considered as doctrine.
This author defines each one of these types, classes or varieties of nullity, citing authoritative doctrine, which results in important information being summarized that allows us to have a guide in our studies on nullity, but on the nullity studied, such as It is by the way the nullity of notarial instruments does not contain information, and for this, we must bear in mind that the studied dictionary is not a publication of notarial law, but rather of civil law, therefore, its approach is civil and not It is a notarialist, in this sense, we must state that the branches of law or legal disciplines mentioned, although they have a lot of relationship between both, it is also true that they have different fields of study, which is widely known by notarialists,but little known by civilians, who in many cases consider that civil law is the main branch of law, and even give it the qualification of trunk of law, and to the other branches of law, they only qualify as branches, and their subjects are given the qualifier or denomination of leaves and flowers, that is, many civilians deny the character of an autonomous branch to notarial law, which is a reasoning that was valid two thousand years ago, that is, in ancient Roman law, but in current Roman law, the indicated reasoning is outdated or old-fashioned, and upsets or leaves aside the entire history of law, on which comparative law studies can be carried out, which in some cases are comparisons, that is to say,in some cases they are studies taking into account the comparison, while in other cases one or more other institutions of comparative law are taken into account, since the latter is not exhausted in the comparison.
We must specify that this dictionary does not take into account the invalidity of notarial instruments, which results in this topic being little studied and not widely disseminated, since the book in question constitutes an important work and publication, which It contains important information on various issues within the nullity, that is, in order to know it in the most adequate way, you should consult books that are quite specialized in notarial law, which do not exist within Peruvian law, but in foreign law, within which we must take into account the Spanish and Argentine doctrine, above all, what is well known by specialists in notarial law, which are known in doctrine as notarialists, who not only dominate the law notarial, that is,They are not legal experts, but they know all the sources of the branch of law or legal discipline studied, that is, they know all the sources or parts of notarial law, and in this sense, we want to provide updated knowledge with which it can be known in a adequate the nullity of notarial instruments, which constitutes a topic not only known in notarial law, but also in other legal disciplines or branches of law, within which we can cite the case of civil, civil, criminal, procedural law criminal, judicial, registry, real estate or mortgage, corporate registry, commercial registry, among other branches or legal disciplines, which demonstrates and confirms that the subject studied is quite important in the study of law, and should not only be studied by notarialists,but also by specialists in other branches of law, within which we can cite the case of the procedural, criminal, mortgage, among others.
That is to say, the nullity has types that must be taken into account not only in the present headquarters, but also in others and it must also be taken into account that the nullity can not only be of a notarial instrument, but also of another class of instruments, Within which we can cite the case of consular instruments, which are the most similar to notarial instruments, however, they are little studied and among those indicated no comparative law studies have been carried out. Consular instruments in some cases are subject to registration qualification, and even register in the registry offices. It is necessary to specify that both instruments can be null, which can be declared judicially, that is, these important issues for notarial and consular law must be taken into account,stating that between which there is a fairly close relationship.
The contractual nullity is the nullity existing in some contracts, that is, it does not refer to the fact of agreeing on it, because this cannot happen and is well known in Peruvian law, within which the existence of notaries public and public registrars, they make it quite reduced, because they make or bring as a consequence that there is a filter so that only the notarial instrument is drawn up and registered, respectively, when the title is valid. That is, sales, leases, donations, exchanges, mandates, loans, leasing, factoring, know-how, company leases, franchises, associative contracts, labor contracts, business contracts, commercial contracts, corporate contracts, and the other contracts in many assumptions can be declared null,but the nullity of the notarial instrument in Peruvian law, we consider that it needs certain correctors, which are not only legal, but also of other types, within which we can cite the case of jurisprudential, doctrinal, enforceable, customary correctors, of social reality, among others.
The contractual nullity constitutes only one type, class or variety of nullity, because we can also study the nullity of legal acts that are not contracts, as is the case of the nullity of powers, wills, contributions in favor of companies, legal persons and autonomous entities, all of which implies the study of many important issues in law.
23. NOTARIES SHOULD ACT WITH CARE
Now we will study the manner or form that notaries public must observe in notarial instruments, which is a topic that has been little touched on in Peruvian doctrine and in this order of ideas we must state that those indicated must act carefully so that The instruments granted in each of the notaries' offices are not null, but must be valid, therefore, the indicated officials must act or act in good faith, and for this purpose they must carefully qualify the instruments before being granted in their notarial offices, which results in the doctrine having coined the legal term "notarial qualification", which is a process carried out or carried out by notaries public, in the exercise of their function, which is non-delegable, irreplaceable, Independent,among other features. In other words, if a notary public notices that the minute is void, he should not allow it to be raised to a public deed, because in the event that this last instrument exists, a series of legal problems will be generated, which in some cases generate legal processes, which take years to resolve.
If the notaries public act carefully, there are fewer problems in the notarial instruments, that is, they must adequately qualify each and every one of those indicated and if the aforementioned officials do not act with due diligence, legal proceedings that could have been avoided will be initiated, and In some cases, notaries public end up involved, which is a latent problem, when these public officials inadequately qualify each of the notarial procedures.
In other words, to reduce transaction costs, it is advisable for notaries to act appropriately, but in practice, the indicated officials sometimes do not act with due diligence, therefore, in the registry offices the work is overloaded, because There are many null notarial instruments that cannot be registered, therefore, we recommend that each and every notary's office act with care, and for this, strong incentives must be created, not only legal, but also of another type, within which we can cite the case of jurisprudential, doctrinal, enforcement, customary, principles, among others so that null notarial instruments are not granted before the notaries, and if these officials refuse to intervene in these instruments, there will be a market safer,within Peruvian law, since notarial instruments have not been created so that there are more null instruments, but quite the opposite so that there are fewer problems in contracting, constitution of guarantees and real rights, granting of legal acts, constitutions of legal persons and other assumptions that we do not continue listing because the idea has become quite clear and we are only citing some of the best known examples, but within the Latin notarial system.constitutions of legal persons and other assumptions that we do not continue to enumerate because the idea has been quite clear and we are only citing some of the best known examples, but within the Latin notarial system.constitutions of legal persons and other assumptions that we do not continue to enumerate because the idea has been quite clear and we are only citing some of the best known examples, but within the Latin notarial system.
That is to say, in the market, notaries public fulfill an important function, which the state has entrusted to them, which should not be understood to stop economic growth, but quite the opposite, therefore, it must be taken into account as a creator of certainty in each and every one of the notarial instruments, so that they are not null, but valid, that is, if the cited officials do their job well, the market will be more protected and in this way all users or clients of notaries They will obtain a quality service, which is taken into account by many notaries, but some do not carry out their work seriously, and that in this case the problems can be of great magnitude, because not all the acts are simple, but some are complex, and also on null notarial instruments,We must say that the aforementioned officials do not have the function of granting them any instrument, whatever its type, but only those that are valid, and in this sense, the doctrine has made relations of assumptions in which we are before instruments null notarial instruments, which only serve to hinder the market, and in this case these instruments do not fulfill the purpose for which the notary was appointed, which was to provide certainty to the market with commercial operations and valid notarial instruments.which only serve to hinder the market, and in such case these instruments do not fulfill the purpose for which the notary was appointed, which was to provide certainty to the market with commercial operations and valid notarial instruments.which only serve to hinder the market, and in such case these instruments do not fulfill the purpose for which the notary was appointed, which was to provide certainty to the market with commercial operations and valid notarial instruments.
Notaries public must be strategic allies not only in notarial law, but also in other branches of law or legal disciplines, within which we can cite the case of business law or company law or business law, and the case of corporate law or corporate law, if these allies perform their function well, the market will be safe, which will result in it being cheaper to use the indicated one, and to use terms of economic analysis of the law, we can affirm that in such case transaction costs are reduced.
Currently, there are in Peruvian law some notarial norms that have a short time of validity, therefore, this time we must specify that academic events on the subject studied must be organized to disseminate them and also that notaries public should only provide their services when We are dealing with valid notarial instruments, and not in the case of null notarial instruments.
This knowledge is known quite widely by notarialists, and even in Argentine law there is UNA, which is the Argentine Notarial University, and this generates that notaries in said republic have the facility of having a University specialized in law Notarial, which can train them without the need to travel abroad, which has as a consequence that null notarial instruments must be less and less, therefore, following these teachings of comparative law, in the Peruvian case master's degrees and other studies have been organized on notarial and registry law, therefore, we hope that this will bear fruit, and in this sense, we hope that in Peruvian law null notarial instruments will decrease and in the best of cases disappear, the latter being quite complex,however, this must be our north. In other words, we hope that notaries public will provide notarial instruments in Peruvian law with an increasing degree of certainty, which will result in fewer judicial and arbitration processes being generated as a result of null notarial instruments, which are only one type, class or variety within ineffective notarial instruments, that is, the latter term is or constitutes a broader term, not only in the study of law, but also in its corresponding application.which will result in fewer judicial and arbitration processes being generated as a result of null notarial instruments, which are only one type, class or variety within ineffective notarial instruments, that is, this last term is or constitutes a term more broad, not only in the study of law, but also in its corresponding application.which will result in fewer judicial and arbitration processes being generated as a result of null notarial instruments, which are only one type, class or variety within ineffective notarial instruments, that is, this last term is or constitutes a term more broad, not only in the study of law, but also in its corresponding application.
VASQUEZ OLIVERA, Salvador. Civil law. Definitions. Page 392.
Ibid.
Ibid.
Ibid.
Ibid. Page 393.
Ibid.
Ibid.
Ibid.
Ibid. Page 394.
Ibid.
Within the wills regulated in the Peruvian Civil Code of 1984, we must take into account closed wills and those granted by public deed, which are notarial instruments that in some cases are void, and in such case they deserve to be taken into account in the present headquarters. The holographic will is also regulated by the aforementioned substantive code, but since it is granted without notarial intervention, we have preferred not to cite it in the previous lines, however, it can also be null, in accordance with the provisions of articles 811 and 707 of the same legal norm. We take advantage of the headquarters to recommend the will by public deed, as it constitutes the safest type, class or variety of will existing in Peruvian law,in which the notary public formalizes in an adequate and reasoned manner the manifestation of the testator's last will, that is, in this type of will there is a small percentage of null wills, which provides certainty and tranquility to all those interested in that the same is executed, since they do not wish to initiate judicial processes, which constitute processes that are too lax and honorable, which result in too much increase in information costs, which are a type, class or variety of transaction costs, the latter being better known and studied and we must also specify that both types of costs are studied by the economic analysis of law, which is studied in law as a method or legal discipline, which in these times has already achieved autonomy,which is known by some authors as a citizenship letter.
Download the original file
