The notarial deed of declaration: the convenience of its revitalization in the legal traffic. Some of its frequent and relevant applications

Abstract

The notarial deed of declaration («acta notarial de notoriedad») has as its content the judgment issued by the notary about on the notoriety of a fact. The notary attests, among other things, the statements of the witnesses but not the truth or evidence of the fact asserted by them; he does not perceive the notorious fact of «visu et auditu» but mediately; the notary does not affirm the personal evidence of a fact, but a judgment of evaluation of evidences. This paper highlights the relevant role, not only of the notarial deed of decalration, but also of the notary’s intervention in legal life, in general, and, in particular, within the scope of non contentious proceedings («jurisdicción voluntaria»). The notary exercises an officium publicum from a professional or private organization attributing the law, by delegation of the State, privileged effects to the documents which he authorizes or in which he intervenes. It is not intended to deal with all the cases in which the notarial deed of declaration («acta notarial de notoriedad») might play a relevant role; furthermore, there is no numerus clausus in this matter; therefore, only most relevant cases will be analysed. In this regard, this study will focus on the role of the notoriety act to accredit issues of interest for hereditary substitutions, as title of the hereditary succession to the effects of the Property Registry for the declaration of heirs abintestato, as the ideal means of proving compliance with conditions and, in particular, the condition of taking care of the testator. On the other hand, the possibility of supplementing the inmatriculable translatory title by notoriety act will be also analysed.