ORIGINAL ARTICLE
MACHADO, Daniel Dias [1]
MACHADO, Daniel Dias. The Importance of Notarial and Registry Activity Through the State’s Civil Liability. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 03, Vol. 14, pp. 85-97. March 2021. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/registral-activity
ABSTRACT
This article deals with the importance of notarial and registral activity on the state’s civil liability resulting from an unlawful act performed by the holder of the notarial and registral service, observing to present objective or subjective responsibility through the exercise of the function. To understand the subject, it was necessary to present the civil liability of the State and professionals, through a sequential, coherent development of fundamental concepts to civil liability. However, the objective was to analyze the Brazilian legal system directly for these services and professionals, from this, to identify the type of responsibility that will be attributed through a possible damage, since they are endorsed with public faith. The methodology used is bibliographic research. It is concluded that the civil liability of the notarial and registrars is in fact subjective, however, the fault or guilt must be proven, if it has to be answered for the damage caused, through the exercise of the function.
Keyword: Civil Liability, Notary, Civil Liability of the State.
1. INTRODUCTION
It is provided for in the Federal Constitution of 1988 (CF/88) the notary and registration services, which is determined the legal regime of such activities, that is, the private management of the civil service. It is defined as public and private factors in a single institution, being a peculiar characteristic of both the notary and the public records.
The CF/88 aimed to transfer to individuals the executions of notary and registration activities, integrating in this determination the burden and the bonus. When a delegate approved in the chosen activity, receive legally the established remuneration, may hire professional in the celetista form, as well as buy, rent, stipulate operating rules, that is, perform any steps of private administrations. Therefore, its limit of freedom is based on the public thing, and cannot dispose without embarrassment the public part.
In this context, the general objective is to present the importance of notarial and registral activity and the civil liability of the State for acts performed by notaries and registrars. And the specific objectives are: to present in a synthesized way the State organization; present the main aspects of civil liability and present the forms of civil liability of the state entity taking responsibility for the acts of notaries and registrars.
In the CF/88 expresses that legal entities of private law will respond objectively to the damage caused, however, the theme becomes relevant for study seeking to understand the extent to which it applies to the notary and registration services. Therefore, this article is justified in understanding the difficulty of establishing the responsibility of registrants and notaries based on compliance with regulatory determinations and requirements, since objective responsibility ends up requiring proof of the damage and also the causal link.
As in all activities, any performance of the public professions may entail a series of responsibilities, which translate into duties, more specifically, the Law of Notaries and Registrars, where the delegated conduct sits corresponding to very few rights, the disproportion of which is exactly the legal relationship based on constitutionally proposed, that is, public delegation.
The problem lies precisely in presenting the extent of this responsibility, which does not require any evidence of guilt, that is, subjective or objective of the public agent. Therefore, it is relevant to understand this legal independence, whose analysis will be relevant to understand whether these professionals respond subjectively.
The hypothesis is based on involving the State, since it has an obligation to avoid any result that is harmful, since it is directly linked to it, ensuring the patrimonial intangibility providing for the public administration a way of acting individualized.
The methodology is bibliographic research, qualitative, descriptive and exploratory. Being a bibliographical research by the search for knowledge through the support of books, articles, monographs, periodical publications, among others, of qualitative character by the phenomenon of the studied interpretation, descriptive by the way of expressing the observed objectives, without interfering in the context, and exploratory for providing more information on the subject.
2. GENERAL ASPECTS OF NOTARIAL AND REGISTRAL ACTIVITY
At the time of the discovery of Brazil by Portugal, that is, in the early years, the Portuguese Crown delegated certain tasks to its employees, whose objective was to bind the Brazilian lands to the king of Portugal, whose name of these lands was Seis Marias (SOUZA, 2009).
According to Souza’s understanding (2009), at this time there was already the registration of these lands, since, in this way the King could have the greatest control over them, vigorous until the independence of Brazil, where the Constitution of the Empire saved the right of property.
However, when the land law No. 601/1850 came into vigo (BRASIL, 1850), the so-called devotee lands emerged, and the vicar was assigned to release in book the future declarations of the land owners and, at the same time, he was also entrusted with releasing these declarations to the Delegate General Of the public lands of each province (MELLO, 2017).
It is worth mentioning that, the vicar’s record was created by Decree No. 1,318/1854, which came to be able to regulate Law No. 601/1850, since the latter was based only on the declaratory nature, that is, it did not have the activity of transferring the properties, since until this time it had no way to transmit them by contact, that is, it was transmitted only by delivery of goods (BRASIL, 1854).
Only in 1864 was created the General Registry, which ended up instituting the transfer of real estate that was transcribed in records, that is, no longer carried out the transfer by simple tradition, which conferred only the character of publicity for the formal act, however, it did not perform proof of the domain of the immovable property, and only resated this requirement with the advent of the Civil Code of 1916 (MELLO , 2017).
Thus, the Civil Code of 1916 ended up replacing the General Registry for Registration of Real Estate, which ensured that the property would only be acquired by transcription of the title of property by scope of the registration of real estate, as expressed in Article 530, that is, by the accession, by the transcription of the title of transfer of the registration of the property, by usucapião and by the hereditary law , however, as long as it comprised by registration of property (BRASIL, 1916).
Also with the Civil Code of 1916, it is important to highlight that the Public Records Law No. 6,015/1973 ended up improving the registration activities, since it created a system of enrollment of real estate and also of registrations and registration acts (BRASIL, 1973).
Finally, with the Civil Code of 2002, in force at the time, it was the one that gave more emphasis on the registration activities of real estate, being able to observe arranged in Articles 1.227, which expresses the transmission of real rights among living real estate consisting only of registration in the Real Estate Registry and also in 1.245, which expresses the transmission between the living from the registration of translating title , that is, as long as it is not translatable registration, the alienating will continue to be the owner of the property, that is, as long as there is no promotion, by decree of invalidity of the registration, by own action, and also the respective cancellation, the acquirer will continue to be owner.
2.1 ASSIGNMENTS OF NOTARIES AND RECORDERS
The Law of Notaries and Registrars brings, already in its first article, the concept that they are public offices, by saying that notaries and registration services are those of technical and administrative organization designed to ensure the publicity, authenticity, safety and effectiveness of legal acts (BLASKESI, 2018)
Certainly these professionals promote the guarantee of the presumption of veracity and authenticity to the legal business initiated and carried out in their presence, under their supervision, due to the public faith that surrounds their function (MELLO, 2017).
These activities aim at realizing the wishes of the parties involved and publicizing the acts performed, in order to speed up the legal business, both in the personal and property domains. Provided for by the Brazilian legal system, it is believed that notary and registry offices will have specific laws, regulated by the National Council of Justice and by the Corregidorias de Justiça, at the state government level (MELLO, 2017).
Research indicates that the countries that have adopted this legal system have presented a significant reduction in costs with the Judiciary, so over the years the Brazilian Legislature has privileged this possibility of choosing the parties to meet the requirements provided by law, having as option the realization of their rights through the administrative route (BLASKESI, 2018).
The recognition of firm is the most common and trivial act of legal proceedings, whose signature of the signatory person is attested by the notary of notes. There are currently two types of firm or signature recognition, namely: by authenticity (or true) or by similarity. In this way, private manuscript documents, whether with copyright or not, released to the notary can be certified or certified by the notary. This is letter recognition (BLASKESI, 2018).
According to Blaskesi (2018) brings the concept of recognition of firm by mechanical seal, being an act by which the notary atteesta or certifies the firm approved in a private document and matches the pattern deposited in the tabelionato. In cartorary practice, the authentication of documents is one of the most practiced acts, daily, that is, authenticating a document is to compare the original with the photocopy presented and say (the notary) that the copy matches the original.
3. THE STATE’S CIVIL LIABILITY IN NOTARY AND REGISTRATION ACTIVITIES
The majority current of thought, which attributes the direct and objective civil liability of the State for notatory and registration acts, is refuted by a minority portion of the doctrine. This portion has in mind that the supervision of the Public Power and the formulation of a basic administrative discipline, would not be able to remove the direct responsibility attributed to the notary and the registrar for the acts performed in the unofficially made assets, since the concessionaires and the permits would provide public services that would be subject to state supervision, without dodging direct responsibility for their acts (SOARES; GONOVEZ, 2015)
According to this conception, the person responsible for the service would not act for the State, but by himself, putting his own risk, with regard to the hiring of his staff and the payment of their remuneration autonomously, in order to distance the notary and the registrar from the figure of the civil servant. Therefore, it is not the delegation of extrajudicial activity confused with representation, which usually occurs in the mandate, and also with imputation, a model that has as characteristic the link between public servants and the State (SOARES; GONOVEZ, 2015)
This is due to notaries and registrars being subject to mandatory supervision by the Public Power by the Judiciary, with no implication of hierarchical subordination or submission. To carry out such public activity, at its own risk, without any managerial, administrative and financial dependence, having, therefore, as responsibility the remuneration of those involved in an autonomous manner, implies the direct responsibility of the notary and the registrar, entrusting them only with the subsidiary responsibility of the state entity (TARTUCE, 2018).
Currently, from the perspective of granting the delegation, the requirement is necessarily the attribution of direct responsibility to the delegate for his acts. If the damage caused by notaries and registrars were answered by the State, “there would be without any reason the constitutional innovation that attributes private character to the exercise of these activities”. Thus, in view of the autonomy of these professionals over administrative and financial management and their perception of the fees paid as a counter-provision of services, there is no need to speak of direct accountability of the state entity (SOARES; GONOVEZ, 2015, s.p.)
Therefore, the subsidiary responsibility of the State would separate the application of Article 37, § 6, in fine, when referring to “agents”, since notaries and registrars would not be corresponding to such agents of the constitutional text. It is worth mentioning that among those who understand that the responsibility for notaries and registration acts is direct from notaries and registrars, and therefore there are two distinct positions, those who understand that such responsibility is objective, and those who understand that this responsibility is subjective. (TARTUCE, 2018).
3.1 OBJECTIVE AND SUBJECTIVE CIVIL LIABILITY
The element of guilt may or may not be important for the duty of responsibility, however, it is necessary to make a brief approach to objective and subjective civil liability. Thus, according to Mello’s understanding (2017), subjective responsibility is the one that sets out the understanding of guilt, since the proof of an agent’s guilt becomes an important presupposition to indemnification damage, so it is understood that the responsibility of the possible cause of the damage is configured only if there was guilt or even deceit.
Subjective civil liability is exactly the one to which it is justified in the presence of the deed or guilt, being both by omission harmful to such person and also by action, being a necessary requirement to be in fact an indemnification (DINIZ, 2005).
According to subjective doctrine, it has as notion of responsibility, the principle that each will respond according to his guilt, that is, unuscuique his guilt nocet, that is, it is understood that the author, the burden of having to prove the fault or the fault of the defendant (GAGLIANO; PAMPLONA FILHO, 2012).
However, in accordance with the Civil Code of 2002 (CC/02) in Article 186, expresses that that of omission or voluntary action, for recklessness or negligence, violating or causing harm to the right of others, is committing an unlawful act, article 187 states that it is also committing an unlawful act the rightholder who exceeds the limits that are imposed on his social or economic purpose, by good customs and good faith, and also, in Article 927 closes stating that the one who causes harm to others by unlawful act is obliged to repair this damage (BRASIL, 2002).
According to Mello (2017), the sphere of civil liability without the existence of guilt has increased significantly in the most diverse segments of social facts, because the issue at the moment is the principle of human dignity of the one who has been offended, in addition to society in a broad sense. It is worth mentioning that, since the beginning of the history of humanity, the principles of responsibility with guilt were not sufficient for certain situations of injury, mainly due to the difficulty of proving one’s own guilt.
In this context, in order to be solving this problem, the institute of objective civil liability is created, which is in the sole paragraph of Article 927 of the CC, which, according to Mello (2017), this type of responsibility only dispensed with proof or even in the absence of guilt or intent, however, only other requirements were perceived, which were, damage and commissive or omissive conduct of the agent , the cause of the case.
However, it is noted that the Brazilian legal system has a dual mode when referring to objective and subjective civil liability, since both coexist simultaneously, where subjective responsibility has as a rule the objective over exception, however, always depending on a legal provision (MELLO, 2017).
3.2 THE IMPORTANCE OF NOTARIAL AND REGISTRAL ACTIVITY UPON THE CIVIL LIABILITY OF THE STATE
The primary function of the State is to regulate the lives of individuals in society, ensuring the dignity of the human person, stimulating the development of the nation and promoting collective well-being, as well as ensuring the construction of a just, solidary and free society. If any individual suffers any kind of damage caused during the provision of services of his competence or attribution performed by individuals, it is the duty of the State to indemnify the victim according to the principles of human dignity and the fundamental objectives of the Republic, both listed in the Federal Constitution.
Thus, the State has civil liability over the acts performed in the provision of registration services and its duty is to indemnify users of this service objectively, since these are services of its competence, attributed to individuals, without losing the essence that the ownership of these services are the State (GARCIA, 2015).
About this, Garcia (2015, p. 136) explains that “the State, by granting the delegations register, in accordance with Article 236 of the Federal Constitution, to the private, delegates only the activity, however, the ownership of the public service, in a “tense binomial-public service-private management”.
Since the services of state competence are performed by registrars, they must be objectively responsible for possible damages suffered by third parties, according to the Major Charter of 1988, in order to preserve the balance of harmonious coexistence and guarantee the dignity of the human person (NADER, 2016).
The duty of the State to indemnify is due to the provision of Article 37, § 6 of the Federal Constitution, and there is currently no doctrinal discussion about this obligation. This is due to the use of the rules of registration and notarial law by the government, in order to meet public needs, to delegate to private entities. Such delegation shall not transfer the objective responsibility of the State to the Delegated Agent. It responds directly, that is, even if it did not practice the act, even if only by deed or guilt (NADES, 2016).
However, there is a divergence about the legal character regarding this obligation of repair, since some consider it to be subsidiary responsibility, while others consider it to be jointly and severally responsible, both based on their arguments.
4. CONCLUSION
It is in the constant search for the protection of the lawful and mainly of repressing the illicit that the Brazilian legal system begins to recognize the institute of civil liability, began to evolve according to the relations of society, where they have expanded, permeating the information age, however, the main purpose of the institute still remains to repair possible unfair damage caused to others, in order to restore the true social balance.
The registered and notaly perform activities that are delegated by the public authorities themselves, however, these are not public officials, who need a specific law to be regulating and discipsing their civil liability in their performance of the function, in accordance with Article 236, § 1 of the CF/88, leading to the belief that Article 37 of the CF/88 ends up not being applicable to these professionals. As a result of this fact, by constitutional determination, Law No. 8,935/94 was issued, however, the new one ended up not clearly discipling what type of civil liability is, since it has nothing specified, that is, it is subjective or objective responsibility.
Thus, it was evident that it is necessary the presence of certain assumptions to be characterizing, which would be, an omissive or commissive action, causal link between damage and action, proof of deceit or guilt, giving the origin of the duty to be reparation the damage.
However, it is worth emphasizing that, the responsibility will never be objective, since the registrar is not a public official, but rather a holder of extrajudicial service, which has duties directly through a delegation, being totally independent of the Public Administration itself.
Thus, the responsibility of the State through the services that are performed by these professionals, there is no doubt that it is in fact the form of solidarity, enabling the injured party the possible power to be still directly demanding against the State, and necessarily invoking responsibility objectively, that is, when there is no fault or guilt of the registrar itself.
In this context, it is concluded that the civil liability of the notarial and registrars is in fact subjective, however, this must be proven to dot or guilt, so that in fact there is an obligation to repair the possible damage, considering that they have to answer for these damages caused, that is, in the exercise of the function, but when they fail to fulfill the functional duties , that is, lacking with due and necessary caution or even when they fail to comply with the existing rules that are imposed.
5. REFERENCES
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BRASIL. Lei n° 601/1850 – Lei sobre terras devolutas do Império. Disponível em: http://www.planalto.gov.br/ccivil_03/LEIS/L0601-1850.htm Acesso em: 15 Jan. 2021
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[1] Bachelor in Psychology with a focus on Clinical and Hospital Psychology, from the Faculdade de Administração, Ciências, Education and Letters, Bachelor in Biological Sciences (Medical Modality) graduated from the Instituto de Ensino Superior de Minas Gerais, Bachelor in Biomedicine from the Centro Universitário ETEP. Postgraduate degree in Aesthetic Biomedicine held at the Faculdade de Tecnologia e Ciência do Alto Paranaíba, Master’s student in Orofacial Harmonization in progress at Faculdade São Leopoldo Mandic.
Submitted: January, 2021.
Approved: March, 2021.
