What is notarial law and what is its importance

1. IMPORTANCE OF THE TOPIC

One issue that must be taken into account is the importance of the issue, which will allow knowing the reasons why notarial law should be studied. This branch of law is very important, therefore, in this seat we quote some definitions of other authors about said legal term, and we also comment on them, and with this we intend to contribute to the notarial doctrine to perfect the meaning or definition of the term legal "Notarial Law", which we put on record so that this work is studied by the most well-known notarialists not only of Peruvian law, but also of foreign law.

In several of these definitions, the error is made of affirming that notarial law is a set of rules, with which we do not agree, and for this purpose we cite some of the best known sources within notarial law.

That is, the law is not the same as the law and consequently the notarial law is not the same as the notarial norms, which is little known in undergraduate studies, but if it is well known in postgraduate studies of longer duration, it is In other words, we are referring to the master's, doctorate, phd and postdoctoral studies in notarial law, which do not exist in Peruvian law, but rather this branch of public law is studied together with registry law. In this sense, in Peruvian law there are master's degrees in registry and notarial law, which we hope will facilitate the study and learning of these branches of public law.

2. MAIN SOURCE OF INSPIRATION

All research work has a source of inspiration, therefore, we must take into account or study what has become of the present work.

The main source of inspiration for this work has been Luis Alfredo CUBA OVALLE's Elementary Treaty of Notarial Law, in which a large part of the commented definitions are published, however, not only is the definitions found cited and transcribed, but also they are commented on, hoping to contribute with this to the study of this branch of public law studied, such as notarial law.

That is to say, the aforementioned treatise constitutes an important published work and contains valuable information that has been taken into account at this headquarters, which we leave on the record so that the virtues of said publication and also those of its author, who in his short age already publishes important works, which are the product of careful studies and positions held in different cities, as well as having previously served as a notary public in the city of Juliaca, and currently works in the capital of the Republic, as is per Certainly the city of Lima, having acceded to both notarial positions by public contest of merits some years ago, which demonstrates or confirms that it has sufficient authority to publish an important work on notarial law, as is certainly the case in the aforementioned treaty.

The author of the present was a classmate of the author of the aforementioned treatise in undergraduate studies, and in these studies he already amply demonstrated that he had the necessary qualities to become an author of books and treatises, as is certainly the treatise to which we have referred.

And in any case, it is more complex to write and publish on notarial law, as it is in the province, in which the libraries contain few books, of which almost all are national, that is, there are few foreign books in these libraries, which makes it even more difficult to write and publish on such an important branch of law and legal discipline, such as law, which in many cases is confused and studied together with registry law, however, they are not the same, but that they are different, which we put on record to take into account, among other issues, the autonomy of both branches of law and legal disciplines, which have appeared after the appearance that civil law had in history.And in any case an important issue that we leave in the inkwell is the history of notarial law, as well as registry law, which are branches of law that are very important not only in civil law, but also in other branches of law., within which we can cite the case of commercial law, business law and recently corporate law, which are different from each other.

3. TOLERANCE

All these comments have been formulated with great respect towards their authors, that is, tolerance towards those indicated should prevail and also with this work, which is written with great care and respect towards the authors of the definitions and we hope that it is understood with this characteristic, since it seeks to contribute in favor of notarial law, not only Peruvian, but also foreign.

4. OPINION OF LUIS M. BOFFI BOGGERO

For Luis BOFFI BOGGERO the notarial right is:

"The legal system of the notarial function".

Notarial law is not a legal system, but the latter is a part of notarial law. Within the notarial legal system, we can cite the case of the legislative decree of the notary public and the single ordered text of its regulations, among many other norms, however, these notarial norms and the rest are or constitute only a part of the notarial law, therefore Therefore, there are other parts, which are the following: notarial jurisprudence, notarial deeds, notarial custom, notarial doctrine, notarial principles, notarial reality, manifestation of notarial will, among many other parts of notarial law, which have not deserved attention in the cited definition,For this reason, we cite them in order to learn more about notarial law and become aware that this law is quite broad.

5. OPINION OF JOSE MAXIMO PAZ

José Máximo PAZ maintains that the notarial law is:

“The study of the set of legal norms contained in various laws that regulate the obligations and modalities to which the active exercise of the function of the notary public must be subjected, as regent or ascribed of registry of public contracts.

In this definition it is argued that notarial law is a set of legal norms, with which we do not agree because the indicated norms are only part of notarial law, and consequently the latter is broader than notarial legal norms, which in the Peruvian case deserve to be expanded and codified so that in Peruvian notarial law there is a Notarial Code within a short period of time.

That is to say, other parts of notarial law are the notarial doctrine, notarial principles, notarial jurisprudence, which is not only judicial, but there are other types, classes or varieties of said source of law, in addition, other sources of the law must be taken into account. right or parts thereof, within which we can cite the case of notarial deeds, notarial custom, notarial reality, among many other parts of the branch of law studied in the present.

6. OPINION OF ENRIQUE J. RISSO

The author Enrique J. RISSO specifies that the notarial law is:

“The set of legal rules of substance and form related to the deed and which determine both the powers and duties of the notary in the exercise of his august public ministry.

RISSO maintains that notarial law is a set of legal norms, with which we do not agree because they constitute or are only a very small part of notarial law, however, those who have just started their studies in law commit the error or they have the habit of confusing the law with the rules, and this also happens in the notarial law, in which it is confused with the notarial legal rules, which should be taken into account only as a part of said branch of law, but we repeat that they are not the same as notarial law.

Regarding rules of substance and form, it is understood that according to this definition this branch of law would not be located in public law, but apparently in mixed law, but in any case it constitutes a great contribution to the notarial doctrine (or doctrine of the notarial law, which is a source of notarial law), the fact of distinguishing the substantive part from the procedural or adjectival part, which are perfectly distinguished and studied in some other branches of law, as is the case of labor law, in which substantive law is distinguished from adjective procedural law, which we record in order to know more widely the branch of law that is the subject of study and analysis, such as notarial law, on which RISSO has provided us with an important definition..

7. OPINION OF ALBERTO VILLALBA WELSH

Alberto VILLABA WELSH affirms that notarial law is:

“The conduct of the notary, that is, as the author of the notarial public form.

Regarding this definition, we must state that notarial law not only refers to the conduct of the notary, but also refers to the conduct of other people who intervene, act or participate within this branch of law.

It is necessary to specify that notarial conduct is only one of the many parts within notarial law, other parts being the notarial doctrine, notarial jurisprudence, notarial deeds, notarial principles, notarial legislation, among many others, which are some of the elements of the Notarial law, however, have received little attention from the most diligent of notarial law.

The conduct of grantors within notarial law must also be taken into account, as well as judges, and other people who intervene within said branch of public law, that is, we can affirm that notaries public are not the only ones studied and regulated by this branch of public law, but there are others, as can be seen not only in social reality, but also in other sources of law.

8. OPINION OF L. BERTAUX

L. BERTAUX points out that notarial law is:

“A whole centered around the shapes”.

Regarding this definition, we must specify that according to a certain approach, notarial law is not only a set of forms, but goes further, according to its different sources, which not only refer to forms, but are also other However, an important contribution to the study of this branch of law, such as notarial law, is that notarial law turns out to be an eminently formal branch of public law, being a formal instrument par excellence the public deed, however it is It does not exist in the Anglo-Saxon notarial system, which means that the Latin notarial system is broader and in which the notary public has a more important role in the law.

That is, although it is true that it is a great contribution to have noticed or warned that forms are important in notarial law, it is also true that this is not all notarial law, but other parts or components of said law must be taken into account. branch of law.

9. OPINION OF MENGUAL AND MENGUAL

MENGUAL Y MENGUAL maintains that notarial law is:

"That scientific branch of Public Law that, constituting an organic whole, reliably sanctions voluntary and extrajudicial legal relationships through the intervention of an official who acts by delegation of the public Power."

We agree with this author in the sense that notarial law is located in public law and that it is an organic whole because this branch of law is organized. According to this author, the notary would be an official who works by delegation, which must be taken into account at this headquarters.

But from this definition we must take into account that according to some notarialists, notarial law is not located within public law, but within mixed law, because it would take into account part of private law and another part of public law, which we leave on the record to The effect of knowing this branch of law in a fairly broad way and thus being able to soak up up-to-date information in a medium in which it is scarce and even worse within the branch of law studied, such as notarial law.

10. OPINION OF ENRIQUE GIMENEZ ARNAU

The author Enrique GIMENEZ ARNAU maintains that the notarial law:

"It is the set of doctrines or legal standards that regulate the function of the notary (notary) and the formal theory of the public instrument."

According to this author, notarial law would be made up of two elements, parts or components, which would be the following:

1) Doctrine.

2) Legal norms.

With which we do not agree because the sources of notarial law are also others, as we have explained when commenting on other definitions, and in any case these other sources of law are notarial jurisprudence, notarial deeds, notarial principles, notarial reality, among others. so many, that is, those indicated are not all notarial law, but constitute only a part of notarial law.

Regarding the second part of the same definition, it is necessary to specify that it is stated that it regulates:

1) Role of the notary.

2) Formal theory of the public instrument.

And with this statement we do not agree either because the performance of the clients of the notaries public must also be taken into account and the public instrument must be distinguished from the notarial instrument, that is, they are not the same and in any case we must distinguish it, therefore Therefore, we can affirm that notarial instruments constitute or are a type of public instruments, which we record the effect of knowing more widely this important aspect within notarial law.

11. OPINION OF RAFAEL NUÑEZ LAGOS

The author Rafael NUÑEZ LAGOS specifies about the notarial law which is:

"The right that studies the ways in which the notary participates as well as the procedure he uses to reach them"

Not only does notary law study the forms, but it also has another part, such as the substantive part. And as for the procedure to arrive at the forms, it is clear that it is not all notarial law, but rather it is only one of the parts of said branch of public law.

Therefore, the processing of non-contentious matters in accordance with Peruvian notarial legislation, which is known in Peruvian law as notarial competence, which has served to reduce the procedural burden of some courts, remains outside this definition, however, we must specify that the procedural overload indicated is still continuing, which we record in order to increase notarial competence in matters that were previously only non-contentious, which we record in order to approve the corresponding legal correctors, among many others, that is, these They are not all the necessary correctors within the Peruvian notarial law, but only the best known, all of which we record in order to know more widely this definition of notarial law,that we believe can be improved with the present comments which are formulated in order to contribute to the permanent development of said branch of public law.

In other words, we consider that said definition of notarial law should be improved or corrected with the present comments, which are formulated with the purpose of contributing to the development of not only Peruvian but also foreign notarial doctrine, and in any case it can be Do comparative law among those indicated, which will allow, among other advantages, that the law circulates, that is, we are referring to an institution of notarial law, which is known as law circulation, which is little known in Peruvian comparative law.

12. OPINION OF JOSE MARIA SANAHUAJA Y SOLER

José María SANAHUAJA Y SOLER maintains that notarial law is:

"The part of the legal system that, by conducting the authentication and legalization of the facts that make the normal life of rights, ensures the reign of the latter."

This author confuses the law with the legal system, which has the consequence that the notarial law is also confused with the notarial system. And this results in the neglect of an important part of notarial law, such as notarial doctrine, notarial principles, notarial jurisprudence, notarial deeds, notarial reality, among other sources, parts or elements of notarial law, which is studied within the introduction to law or general theory of law, which is a legal discipline recently taken seriously in graduate studies in law.

It is necessary to bear in mind that within the notarial law, non-contentious processes of notarial jurisdiction must also be taken into account, which has been extended a few days ago to some processes that it did not have before.

13. OPINION OF THE INTERNATIONAL UNION OF LATIN NOTARIES

The International Union of Latin Notaries specifies that notarial law is:

"The set of regulatory legislative provisions uses jurisprudential decisions that govern the notarial function and the notarial public instrument."

This body is an international institution that groups together notarial systems from several countries that have enshrined the Latin notarial system in their law, which constitutes a fairly important notarial system in the study of notarial law and on its definition we must bear in mind that regarding the Sources of law is broader, therefore, it deserves to be taken into account, but not only does the notarial function or function of the notary govern, but also the actions of all the other parties within the notarial law. Regarding the notarial public instrument, we must specify that it is protocol and extra-protocol and it must also take into account non-contentious processes of notarial competence.

This organization has organized several international events on notarial law, which we record in order to consult not only papers, but also the conclusions of these events, with which we hope that the knowledge will spread not only within Peruvian law, but also in foreign law.

14. OPINION OF CARLOS NICOLAS GATTARI

For Carlos Nicolás GATTARI, the notarial law is:

"The set of rules that subjectively, objectively and functionally discipline the notarial function".

Notarial law is not a set of rules but goes further, which we have explained previously, which we record in order to know the definition or meaning of this branch of public law in a broader form or manner.

We must also specify that the notarial function is not the entire notarial law, but only a part of it.

15. OPINION OF BECERRA PALOMINO

BECERRA PALOMINO specifies that the notarial law is:

“The set of concepts and precepts that regulate and deal with the instrumental form, the organization of the function and the notarial file”.

This author is Peruvian, and on his definition we must take into account that he includes:

1) Concepts.

2) Precepts.

As a consequence, other sources of law are not taken into account, which we state on the record and this we have also noticed in other previous definitions of the legal term studied, such as notarial law.

The instrumental form only refers to notarial instruments and non-contentious processes of notarial competence are outside this term, that is, as a brief comment we can affirm that this branch of law turns out to be a fairly specialized topic on which it has been published few books and fewer treatises, which must be taken into account in order to take into account its limited development, which not only exists within Peruvian law.

16. BARDALLO'S OPINION

For BARDALLO the notarial right is:

"It is a legal system that aims to regulate the legal form and the authenticity of businesses and other legal acts for the peaceful realization of law."

In this definition, the term legal system is used, which is done correctly, that is, the distinction between legal norms and law is known or, more clearly, the distinction between notarial norms and notarial law is known, that is why it is You should carefully read and study the definition, which must necessarily be taken into account within the notarial law.

It is also necessary to bear in mind that notarial law is sometimes taken in to prepare future judicial and arbitration proceedings, however, in Peruvian law this has received little dissemination, which we leave on the record in order to take these aspects into account so important within the branch of law or legal discipline subject of study.

17. OPINION OF LLARRAUD

LLARRAUD specifies that the notarial law:

"It is a systematic set of rules that establish the legal regime of notaries."

Regarding this definition, we must bear in mind that the law is not the same as the legislation, and consequently the notarial law is not the same as the notarial legislation, that is, in this case these two notarial terms are confused, which is also a error of many other definitions cited above, and in this sense it merits some corrections that must be practiced to the indicated definition so that it is perfected, with contributions from the doctrine that is attentive to the contributions to the law and within this to the notarial law, which is an important legal discipline and branch of public law.

In addition, we must bear in mind that not only does it regulate notaries, but also other notarial institutions, which we leave on the record in order to know more widely the term studied, as is certainly notary law.

The legislation does not establish a legal regime, but rather a legal regime, which must be taken into account when rethinking the definition of this brief comment and in this sense we hope to have contributed our grain of sand to such an important branch of public law. or legal discipline.

The legal term "systematic" when referring to legislation is closely related to a part of the law such as notarial codification, which does not exist within Peruvian notarial law, which we record in order to have greater knowledge about such important legal issue.

The term norms does not always refer to laws, because there are also other extra-legal and extra-legal norms, which constitute widely studied topics within the general theory of law or introduction to law, which is an important legal discipline that has been neglected above all within Peruvian law.

18. OPINION OF MANUEL OSSORIO

Manuel OSSORIO specifies referring to the notarial law that is:

“Set of legal norms that regulate the exercise of the profession of notary or notary public”.

Therefore, on this cited definition we must specify that the law is not the same as the legal norms, and neither is the notarial law the same as the notarial laws, but that the latter constitute a part of the first.

In addition, we must specify that legal norms are not the same as legal norms, but that those indicated constitute different topics from each other, which we state in order to deepen our knowledge about the general theory of law or introduction to law and this subject as they are By the way, the legal norms are quite studied within another subject which is known as the legislative technique, which is the art of legislating and is part of the legal technique, the latter being the gender while the first constitutes one of the four species that we have cited in other venues, which we leave on the record in order to know more widely the legal regulations, which deserve a careful study that goes beyond the field of study of this research work

That is, in this definition law is confused with positive law and in this sense, for many it could be considered as a normative conception of law, that is, it is appreciated with the aforementioned definition of law with a unidimensional vision.

We must also specify that not only does notary law refer to the profession of the notary or notary public, but in general to all those involved in the branch of law studied, within which we can also cite the case of grantors, for example in In the case of the public deed of transfer by sale, the grantors will be the transferring owners and the acquirers or new owners, and in a mortgage the grantors will be the mortgagee and the mortgage debtor, which constitute issues of vital importance in the study of the right

That is, we have cited only two cases of granting of public deed, therefore, we must specify that they are the most important, but they are not the only ones, but others must be taken into account, for example in the case of modification of statute, capital increase, capital reduction, change of name, company name or denomination, change of address, change of purpose, extension of purpose, securitization of assets in their different types, classes or varieties, transfer of shareholdings, cancellation of security interest on social participations, constitution of legal persons, constitution of mortgages, extension of mortgages, cancellation of mortgages, among many other cases, in which there are also grantors,which we record in order to know more widely this important notarial issue.

19. OPINION OF GUILLERMO CABANELLAS

For Guillermo CABANELLAS, notarial law can be defined as:

“Principles and regulatory norms of the organization of the notarial function and of the formal theory of the public document”.

This definition leaves out important parts of notarial law, that is, to be clearer, we will first list the elements that it considers within said branch of law, which according to said author would be the ones listed below:

1) Notarial principles.

2) Regulatory standards.

That is, it only mentions two elements, components or sources within notarial law, therefore, according to this definition, all other elements within said branch of public law are left out, such as notarial doctrine, notarial jurisprudence, enforceable notarial, notarial social reality, manifestation of will within notarial law, among many other elements.

Therefore, we can affirm that with this definition of notarial law there is a two-dimensional view of said branch of law, because it considers said branch of law with only two elements, which are those indicated above.

We must also specify that it refers only to:

1) Notarial function.

2) Formal theory of the public document.

Which brings as a consequence that the manifestation of the will of the grantors within the notarial law is outside the scope of the definition and also another problem which consists in that the document is confused with the instrument, and the public document is also confused with the public instrument, and the notarial document with the notarial instrument, and the notarial instrument with the notarial document, therefore, this definition must be the subject of rigorous studies in order for it to be reformulated, with which it seeks to achieve the long-awaited legal knowledge and in any case the public deed is a notarial protocol instrument, which in Peruvian law has deserved few studies even by the most diligent notarialists within Peruvian law.

20. OPINION OF L. RIBO DURAND AND J. FERNANDEZ FERNANDEZ

According to L. RIBO DURAND and J. FERNANDEZ FERNANDEZ, notarial law can be defined as:

"Normative and doctrinal set that regulates the activity of public officials called notaries."

This definition refers to two elements of notarial law, which would be those listed below:

1) Regulatory set.

2) Doctrine.

In other words, according to this definition, many of its elements are outside the scope of notarial law, which is why we do not agree with this definition, which we put on record in order to take this statement into account in our notarial studies.

Therefore, to make statements about notarial law, greater knowledge and experience is needed, and in any case there are other elements within this branch of law, as we have explained in various parts or subtitles of this work.

Regarding the term public officials, we must specify that some consider that it should not be used to refer to notaries, a statement with which we disagree, with which we can conclude that this part of the definition is totally and completely correct.

It should also be specified that not only is the activity of notaries regulated, but the activity of all those who intervene within the notarial law is regulated in general, some of whom are by the way the judges and others are the grantors. In other words, judges must also respect notarial law and must not run over it with illegal and unconstitutional warnings, which result in the loss of respect for said branch of law, therefore, procedural law is related to notarial law., and consequently all judges must be trained in this branch of law in order to have important and solid notions about the one indicated so that there are no confrontations between judges and notaries public, because each one has their job,which is governed by the rules of the division of labor, known by some as the compound division of labor, according to which specialists are trained, including notaries public, who do not owe obedience to the judges, because Each one is autonomous or independent in its function, which is widely explained, sustained and defended in the doctrine, and within this we can cite the case of the Argentine doctrine, more than ten years ago. That is to say, the source of the law cited, as it is by the way the doctrine is also very important in the studies of notarial law.because each one is autonomous or independent in its function, which is widely explained, supported and defended in the doctrine, and within this we can cite the case of the Argentine doctrine, more than ten years ago. That is to say, the source of the law cited, as it is by the way the doctrine is also very important in the studies of notarial law.because each one is autonomous or independent in its function, which is widely explained, supported and defended in the doctrine, and within this we can cite the case of the Argentine doctrine, more than ten years ago. That is to say, the source of the law cited, as it is by the way the doctrine is also very important in the studies of notarial law.

21. OUR OPINION

When any topic is developed, it is important to provide the opinion of the author of the book or article, which is knowledge that is provided after having reviewed various authors, and with this we hope that with our limited knowledge the definition to be provided is the most appropriate and In this way, it contributes to the development of notarial law, which is a branch of law and legal discipline different from registry law, however, we must specify in this headquarters that both are located within public law, in which the agreement of the parties and the autonomy of the will has a rather reduced field of study, the exact opposite is the case in private law, that is, the latter with public law has different characteristics.

Now we will provide our own opinion on such an important notarial issue, which will bring as a consequence that we wish or have the intention of contributing to such an important legal discipline with our knowledge and experience, which has always been close to such an important branch of law as it is for True the indicated, that is, we are referring of course to notarial law.

The doctrine has provided few definitions of notarial law, as can be seen in Peruvian and foreign law, even in the case that abundant legal dictionaries have been consulted, not only Peruvian, but also foreign.

That to be defined, its sources must be taken into account, which are little studied in this branch of law, which also constitutes a legal discipline.

It is difficult for us to define notarial law, because we have never been public notaries, however, the registry and investigative work has been close to such an important legal discipline, of which we record in order to know this matter in a broader way and adequate, that is, we consider that there are other people more authorized to formulate or reach or present or publish definitions of notarial law that are more important in the study of law and in the Latin notarial system, public deed is very important, which does not exist in the Anglo-Saxon notarial system.

Notary law for us is the legal discipline located within the public law that groups is made up or integrated by all sources of law applicable to it, that is, not only notarial legislation, but as we said all its sources, constituting a branch of law very important in the study of law.

This branch of law not only applies and is mandatory to notaries public, but in general to all those who intervene within the notarial law, other important characters being the grantors, that is, the latter are also subject to said branch of law.

Therefore, it is an error to consider that notarial law only studies what is related to notaries public, because it leaves aside the other people who intervene within the branch of law or legal discipline subject of study, which in any case not only are the indicated ones, that is, they are not only notaries and grantors, but it goes further, with which we hope that the study, knowledge, teaching and learning of the branch of law studied will be promoted, which provides firmness, security and guarantee on all in the case of the public deed, which with other notarial instruments make up the notarial protocol. All of which is taken into account by the different sources of notarial law.

CUBA OVALLE, Luis Alfredo. Page 34.

Ibid.