1.

HISTORY OF NOTARIAL LAW

a. Background:
We can understand that the notary profession may have had its origins in the
beginnings of human social life. Likewise, the notary office was not initially
considered a legal entity, and therefore did not even have public faith, but rather
this was acquired over time. It was a profession practiced by those who were able
to read and write, so they fulfilled a function of serving the king or some official of a
town to write texts.

As people advanced towards civilization, the particular relationships between

human beings became more complicated. Economic exchanges and the desire for
profit gradually brought about new needs in social life, and with them legal relations
became increasingly complex. (GARCIA AMOR, 2000)

It is in Egyptian, Greek and Roman societies that we can find the most distant
ancestor of the current notary, who was known as "the scribe", when ancient
codes such as those of Hammurabi and Manu were created, however the notarial
function was not defined, the scribe acted as an essential element in the legal and
administrative organization of the kingdoms.

In Egypt, the scribe had special privileges and considerations, with the task of
carrying out accounting functions and the preparation of written documents; in
Palestine, he had the status of interpreter of the law, and also enjoyed
consideration, in addition to holding leadership positions in the management of the
government. The scribe is always a public official and the place he occupies within
the social organization is due to his effectiveness in his work, his function and
connection in the order of the patrimony and the development of the economy,
both individual, private, and state.

The logical process of the formation of the notary, of such importance, offers the
advantage of being an unquestionable and secure means of proof in the private
relations of society. (Muñoz, 2007)
 This institution has been consecrated from the beginning as a guarantee,
that is, because justice cannot be fulfilled without evidence that leads to a deep
conviction, the documents that contain such evidence are fundamental, and the
institution that has the purpose of collecting, creating and preserving them
possesses not only a public order and public benefit, but is an indispensable
institution for regular life and prosperity.

Likewise, the institution of notary publics and the sciences that gave rise to it are
not exact or precise enough to be framed within a specific period, nor can its
creation be attributed to a specifically known people, and with respect to the
sciences, a similarity with other sciences cannot be indicated in which their birth is
attributed, however it is established that their creation is as old as the peoples that
reached a degree of civilization or scientific development in the history of humanity.
(Muñoz N. R., 2009)

In some civilizations, the notary profession initially had no other role than that of a
simple scribe or person in charge of authorizing the sentences of judges or
magistrates; he is considered to be a primitive notary. It can be deduced that the
origin of the notary public dates back to the moment when the need to contract
between people was felt, or that it is as old as the first written law or as the first
application of positive law.

In Rome there was a great development in terms of law, to such an extent that it
created its own legal system, on which our current law is based.

Notarial functions in their Roman origin lacked the power of authentication, under
the protection of the power of the empire conferred on the Praetor. Throughout the
existence of Roman Law there were a multitude of people to whom the notarial
function was partially entrusted. In Rome, the notarial function was attributed and
dispersed to a multitude of public and private officials, but without all the powers of
these persons being brought together in a single one. (Velásquez López, 2001)
b. Old Spanish Notary Public:

Roman domination brought its laws, customs and traditions to the conquered
lands, and in Hispania, as in the rest of the conquered peoples, institutions were
implemented in the same form or similar to those existing in Rome.

In this way the notaries had the same name as in Rome, complying with the same
formalities, and were subject to the same Roman laws, practices and customs.

In the Middle Ages, the practice of notary was typical of conventual or monastic
congregations and every act and contract was granted before a priest, monk or
religious and authorized in the presence of several witnesses, who belonged to the
nobility and it was common to stamp the seal of their arms or coats of arms next to
their signatures.

From that time until the promulgation of the Fuero Juzgo and Fuero Real, contracts
and notarial acts were celebrated in the presence of ordinary justice.

It is in the Fuero Juzgo where notaries are expressly appointed. Law 1, Title 8,
Book 1, of the Fuero Real (1255), spoke of the office of Notaries as public,
honorable and communal for all.

The title of Notary was general for all those who had the mission of giving faith, as
well as all the offices performed modernly by secretaries, actuaries and notaries.

In the 16th century (1534) it was established that candidates, to be admitted to an

examination before the Council, should carry out an information of suitability and
fidelity, carried out before the court and having subsequently required them to be
twenty-five years of age.

In the 17th century, candidates were also required to have two years of
service in the office of Secretary or Clerk of the Court of Audiences or other public
offices, or as Lawyers, Rapporteurs, or attorneys. The examination requirement
was made indispensable by means of one hundred ducats, and by paying the
same amount for each year that the candidate lacked to reach twenty-five years of
age, he was exempt from this requirement.

The Spanish notary system is considered the most immediate origin of what is
known as “Latin Notarial Law.”

c. Pre-Hispanic Period:
In Mesoamerican societies, scribes were held in high esteem, being
considered highly respected people and admired for their knowledge.

The Aztecs developed a rudimentary notarial function that was entrusted to the
Tiaculio, equivalent to the Egyptian scribe. They did not know a writing system that
would allow them to put down on paper a series of legislative codes as happens in
other more advanced civilizations such as India, Egypt, Babylon. However, a
record and classification of properties is recognized, a document called the pre-
Cortesian code, known as the Tribute Registry, consisting of a detailed description
of the tributes that the people paid to the Aztecs and that were authenticated in a
document made within the notarial function, as well as that of testifying that is
found in Aztec culture, in the purchase and sale of slaves.

In Inca society, the administration of the state apparatus required the creation of a
bureaucratic institution and artifacts, such as the quipu, which allowed the
recording and storage of information, which was strictly numerical, and it is also
known that other types of data were also recorded, such as names of people, cities
and dates, based on numerical codes. (Luján Muñoz, 1977)

Ancient Spanish administrative documents reproduce the readings that

specialized officials, or quipucamayoc, made of their quipu in judicial and notarial
processes in the early colonial period.

d. Colonial era:
The conquest of the New World meant the confrontation of two cultures, the
European one and that of the first indigenous peoples in Latin America. The first
intention of the European conquerors was to apply Castilian law in the new lands.
Subsequently, a legal regime was created for these lands, that is, Indian law, with
both legal systems coexisting, one as a general rule and the other as a special
rule. (SOBERANES FERNÁNDEZ, 2003)
At this time, the notary was the individual who had the authority to exercise notarial
authority, and was defined as a trustworthy person who, in court or out of court,
gives and will give full faith and credit to everything he does and authorizes as
such a notary.
On the occasion of the conquest, it is worth highlighting the role that Hernán Cortés
played in matters of notary public. In Spain, first in Extremadura and then in
Seville, Cortés worked as a notary's assistant and already in America, in Santo
Domingo, he asked the King to be appointed as the King's Notary, without having
achieved this. (PÉREZ DE LOS REYES, 2007)
Through the Laws of the Indies, the Spanish conquerors began to legislate on
American territories with the purpose of benefiting the Spanish crown and the
Church. In this period, the figure of the notary appears. In Book II, Title 10, we find
the reference “Of the Chamber Clerk of the Royal Council of the Indies”.
(http://www.congreso.gob.pe/ntley/LeyIndiaP.htm)

e. Republican era in Peru:

On October 8, 1821, Don José de San Martín issued the Provisional Statute,
through which he ratified and expanded what was established, in judicial matters,
in the Provisional Regulation of February of the same year. In the aforementioned
regulations it declares that "all laws that governed the old government remain in
force and effect, provided that they are not in opposition to the independence of the
country, to the forms adopted by this statute and to the decrees issued by the
current government." This leads us to conclude that Hispanic norms are
considered valid, current and in force, as long as they do not contravene the
independence struggle. For this reason, public notaries could continue to be
governed by the rules of the Indies. Subsequently, by decree of January 1, 1822,
all notaries who had a license issued by the former Spanish Government were
ordered to appear before the Ministry of State to be endorsed in their functions.

The indicated rules were followed by the Provisional Regulations for the Courts of
Justice, also issued by the liberator San Martín on April 10, 1822, which consisted
of ten sections and a total of 166 articles.

Later, on January 12, 1825, when the Liberator Simón Bolívar had already settled
in Peru, and because, as Manuel de la Lama comments, "it was a true
contradiction that the public had no faith in the custodians of public faith," (De la
Lama, 1912)it became necessary for the Liberator to issue a provision supporting
the function of the notary, calling for respect for his activity and for his previous
status to be maintained, thus preventing said institution from being lost in the
legislative maelstrom of independence.

It is the Court Regulations of 1854, an evolution of the Regulations of Courts

and Tribunals of the Republic, of December 9, 1845, where a more systematic and
specialized character is granted to the function of the judicial and public notary, in
such a way that to be a public or State notary, it was established as a prerequisite
to have practiced for two years in the office of another notary; with which
experience in notarial work constituted an indispensable prerequisite for
succession in the position.

During the following years, a significant amount of colonial legislation remained in

force, undergoing some modifications in the following years, but which did not alter
legal figures that were specific to the European continent, such as the figure of the
Notary. By 1862, the Notary was conceived as:
"The official or (…) public secretary who, with legitimate title, is destined to
draft and authorize with his signature the documents and proceedings of judicial
procedures, and also the deeds of acts and contracts entered into between
parties." (GARCÍA CALDERÓN, 1862)

At that time, the notary performed some functions that are currently inherent to
judicial work or to the assistants of jurisdictional work in our days.

The Notary Public is therefore the historical antecedent that most closely
resembles the current figure of the Notary Public, with very similar features and
elements that have remained unchanged, as they are characteristics inherent to
notarial work.

The Notary Law of 1911 defines the Notary, in its article 1, as Notaries who certify
the acts and contracts that are performed or celebrated before them, and their
number would be set by the respective Superior Court, without being able to
exceed three in the provincial capitals; six in the coastal department or province,
and twenty in the capital of the Republic. (De la Lama, 1912)

This Notarial Law of 1911 was in force for more than 90 years, considering
that it came into effect on July 28, 1912. It was a rule that was modified over the
years, in particular by Law No. 22634 of August 14, 1979, which, adapting it to the
provisions of the Political Constitution of 1979, indicated that the Judicial Branch
should only deal with the administration of justice, being therefore excluded from
supervising the notarial function. Other changes related to the inclusion of the
Public Competition of Merit and Opposition as the route to enter the notarial
function. Likewise, during the validity of the Law, Law 16607 and Decree Law No.
21944 were passed, by means of which the College of Notaries and the Board of
Deans of the Colleges of Notaries were created, respectively. Finally, Law No.
22634 increased the number of Notaries in Lima from 20 to 40.
 The referred rule was repealed by Decree Law No. 26002, of December 7,
1992, published on December 27, 1997. This law constituted a legislative advance
based on a legislative reform project that had been worked on for years. Its
importance lies in the fact that it defines the notary as a legal professional who
guides and advises the parties; it systematically regulates the notary, his function,
his obligations, duties and rights; it maintains the public competition as a means of
access to the position; it establishes that Notaries can only be lawyers; it creates
the mutual fund of the notary integrated by all the Notaries of the country, which
would benefit those Notaries who for reasons of age or health must cease their
functions, as well as their relatives in case of death; it establishes causes for the
cessation of the Notary; it incorporates several articles on the nullity of public
protocol instruments; it includes rules related to the organization of the Notary, the
Board of Deans of the College of Notaries of Peru and the Notary Council.

Finally, on June 25, 2008, the new Notarial Law was granted, Decree Law
No. 1049, which was regulated by the Regulations of the new Notarial Law,
approved by Supreme Decree No. 003-2009-JUS

Through Article 2 of Legislative Decree No. 1049 (Legislative Decree of Notaries),

the Law has attempted to conceptualize the person of the notary and establish in
general terms the functions that he performs, as follows:

“The notary is the legal professional who is authorized to certify the acts and
contracts that are celebrated before him. To do this, it formalizes the will of the
grantors, drafting the documents to which it confers authenticity, preserves the
originals and issues the corresponding transfers. Its function also includes the
verification of facts and the processing of non-contentious matters provided for in
the laws on the subject." (Legislative Decree No. 1049)
 As can be seen, the notarial function in republican Peru enters the second decade
of the 21st century amidst upheaval.

2. NOTARIAL SYSTEMS
The notarial systems are Anglo-Saxon and Latin.
a. Latin System:
This system originated in Rome with the practice of Italian cities with the aim
of promoting the economic flourishing of the 12th and 14th centuries. This system
spread rapidly to the Western world, linking, in the so-called Germanic countries,
with the codification based on the Napoleonic Code. It was established in Europe
and Latin America, and in recent times it has experienced strong expansion
through French influence. Its implementation in different countries represented
important support for their incorporation into a market economy.

The essential characteristic of this system is that the document issued by the
Notary is bound by public faith, which means that the notarial document cannot be
discussed in the process, except for proof of falsity in what the notary claims has
occurred before him. Likewise, and as a consequence of this public faith, the
notarial document is directly enforceable, in a similar way to a court ruling, without
the need for prior proof of the veracity of the facts narrated therein. (CASTILLO
OGANDO, 2007)

The Notary has a dual function: to certify and to give form. The Notary must be a
lawyer, and the notary profession is exercised as a liberal professional, without any
degree of dependence or subordination.

b. Anglo-Saxon System:

This system has its origins in English Law. It does not take into account the
Romanist System. The standard adapts to the situation (it is created according to
needs).

English culture was born as a mixture of Norman nobility and the Anglo-Saxon
population, with some Roman blood, around the 11th century, and the unification of
law was achieved shortly after through the decisions of the Royal Courts of Justice
to the detriment of local customs.

Saxon notary services are of a private nature, and their function is basically,
on some occasions, the drafting of documents, the identification of persons and the
certification of facts and signatures. Within this system, the role of the notary falls
to people of high moral character, good customs and upright conduct. Its exercise
is of a private nature, but the guidelines, whether requirements or limits, are set by
the State. (GOMÁ SALCEDO, 2011)

Characteristics:

- The notary is a certifying official or public official, because he only attests to

the signature or signatures of the documents.
- It does not guide or advise the parties on the drafting of the document.
- Only a general culture is required, a university degree is not necessary.
- The authorization for its exercise is temporary and renewable.
- There is an obligation to provide a bond to guarantee responsibility in the
exercise.
- There is no professional association and they do not follow any protocol.

The Anglo-Saxon system of notarial law is based, above all, on the analysis of
judicial decisions issued by the same court or one of its higher courts (those to
which the decisions taken by said court can be appealed) and on the
interpretations that these decisions give to the laws. For this reason, the laws can
be ambiguous in many aspects, since the courts are expected to clarify them (or
they have already done so with respect to previous but similar laws).

Notarial practice is based on the drafting of documents, identification of persons

and certification of facts. English and American law are framed within this system
and are based on the effectiveness of jurisprudence as a legal norm that underlies
the passage of time. (GONZÁLEZ LÓPEZ, 2007)

Literature

CASTILLO OGANDO, N. (2007). Manual Derecho Notarial Tomo I. Ediciones

Jurídicas Trajano Pontentini.

De la Lama, M. A. (1912). Ley de Notariado. Lima: Librería e Imprenta Gil.

GARCIA AMOR, J. A. (2000). Historia del Derecho Notarial. México: Trillas.

GARCÍA CALDERÓN, F. (1862). Diccionario de la Legislación Peruana. Lima:

Imprenta del Estado.

GOMÁ SALCEDO, J. (2011). Derecho Notarial. Editorial Bosch.

GONZÁLEZ LÓPEZ, M. (2007). Anales del Notariado: del Tabellionado hasta hoy.
Revista Feapen Inter Nos. Suplemento núm. 40. JulioAgosto-Septiembre.

Luján Muñoz, J. (1977). Los escribanos en las indias occidentales. Guatemala:

Instituto de Derecho Notarial.

MINISTROS, P. D. (2008). Decreto Legislativo N° 1049. Diario Oficial El Peruano.

Muñoz, N. R. (2007). Introducción al estudio del Derecho Notarial. Guatemala:
Infoconsult Editores.

Muñoz, N. R. (2009). El instrumento público y el documento notarial. Guatemala:

Imprenta BG.

PÉREZ DE LOS REYES, M. A. (2007). Historia del Derecho Mexicano. México:

Oxford University.

PERÚ, C. D. (s.f.). Archivo digital de la Legislación en el Perú: Leyes de las Indias.

Obtenido de http://www.congreso.gob.pe/ntley/LeyIndiaP.htm

SOBERANES FERNÁNDEZ, J. L. (2003). Historia del Derecho Mexicano. México:

Editorial Porrúa.

Velásquez López, L. (2001). Derecho y práctica Notarial. San Salvador: Lis.