​​​​​​​​NOTARIAL RECORDS

Figure 7-9.png


FORMAT OF NOTARIAL DOCUMENTS

By the end of the Middle Ages a basic formula for writing notarial documents had developed throughout Europe. Every notarial record should contain the following six elements:

  1. Reception of the parties by the notary;
  2. Date and locality of the transaction;
  3. Identification of the parties;
  4. Standard legal language specific to the type of transaction;
  5. Witnesses to the transaction; and
  6. Authentication of the transaction by the notary.[1]

 

This pattern reflects an ideal formulaic process in which the parties presented themselves before the notary who took notes concerning the transaction, and reduced that transaction to a standard format whose regularity added to the legal authenticity that the presence and signatures of the notary and witnesses gave to it. For comments on the authenticity and veracity of notarial transactions click here.

Fully defining this process comes only with experience in reading and understanding the documents. While it is impossible to explore all the nuances of notarial records, a practical analysis of their standard parts sets the researcher on a path to understanding them, offering a standard against which to compare and interpret the documents he or she reads. With that idea in mind, return to the six elements that are—or should be—found in every document that came from the pen of the notary.

  1. Reception of the parties by the notary: This is most often indicatedIndividual identication tags.png by languagsuch as parecieron presentes ante mi el infascrito escribano ([the parties] appeared before me the below-signed notary), followed by the names and identification tags of the parties.
  2. Date and locality of the transaction: Dates are normally expressed in this form: dos de mayo de mil setecientos tres ([day] two of May of seventeen hundred three). They may appear at the beginning of the notarial document, but most often appear in the last paragraph.
  3. Identification of the parties: The identification of the parties and the witnesses varies as to completeness, but always involves identification tags as listed in the Figure. The most commonly used are names, surnames, residences, and marital status. Occupation or title are usually only found for professionals or officials such as doctors, mayors or priests, or for titled nobility. Each of these tags has a legal significance in creating an identity for the individual.[2]     
  4. Standard legal language specific to the type of transaction: The legal language of notarial documents was so standardized by the sixteenth century that books were published setting forth specific formats for the notary to copy.[3] Many frequently-found usages are specifically discussed in this chapter and the two which follow.                                
  5. Witnesses to the transaction: Witnesses were usually drawn from persons associated with the notary and not necessarily related to any of the parties, except perhaps as neighbors if the document was signed at a home. 
  6. Authentication of the transaction by the notary: With words such as "de esto doy fe" (to this I give faith), the notary not only authenticated the identities of the parties but established the validity of the contract. Authentication is a key concept under notarial law since this is where the legal assumption arises as to the validity of the documented transaction—in and out of court.

 

Spanish English Chapter inventario de bienes de difunto Inventory of the decedent´s assets 9    *
alcabalas sales tax 10 ​fianza bond      ​*
arrendamientos rústicos rural leases 7 limpieza de sangre purity of blood 10
arrendamientos urbanos urban leases 7 mayorazgos y vínculos entailed estates 9, 10
arriendo de rentas públicas rent of public assets 7, 10 partición partition 10
capitulación  matrimonial
and
inventario de dote
marriage contract

dowry inventory
8    * poder power of Attorney contratos7    *
contratos including
cartas de pago
contracts
including 
IOU​ contracts
7    * prueba de nobleza proof of nobility 10     ​*
censo annuity 7 renuncia relinquishment 7, 9, 10
certificación certification 7 testamento testament 9     ​*
cesión assignment 7 traspaso transfer 7
cobdicilio codicil 9 truecos y cambios exchanges 7
compra-venta contract of sale 7    ​* tutela guardianship 9
donación gift 7 venta real real property sale 7     ​*

Figure 7-9. Common Types of Notarial Documents and the chapter(s) in which they are discussed in Reading to Understand Handwriting and Documents in Spanish, 1520-1820

 

en la notaria.jpg

​Analyzing and Translating Legal Phrases and Concepts

One of the major challenges in working with notarial records is the quantity of legal phrases and concepts that appear. Some of these have parallel concepts in Anglo-American jurisprudence, such as the right of a buyer to both possesion of the land and clear title thereto, which in its failure results in a quiet title action in the court. Translating the language expressing such concepts requires only an understanding of the basic juridical ideas used; however, using a Spanish/English legal dictionary such as that published by Butterworth Legal Publishers enhances the process of selecting a correct English legal term.

Spanish law falls within the continental European Civil Law legal tradition, which has it origins in Roman law. During the early Renaissance of the twelfth and thirteenth centuries legal scholars at universities such as those in Salamanca, Spain and Bologna, Italy restored and reformulated not only many of the core principals of Roman law, but many specific legal doctrines and even specific laws. The meanings of Latin descriptive phrases such as ultradimidian justi medi preci[4] can be found by searching in different online reference works. They include:

  1. Enciclopedia jurídica at http://www.enciclopedia-juridica.biz14.com.
  2. Numen – The Latin Lexicon  at http://latinlexicon.org/index.php.
  3. The Law Dictionary Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd Ed. atwww.thelawdictionary.org, also downloadable in pdf facisimile format as a free Google eBook.​

 

[1] "Bibliografía del Notariado en España," Estudios históricos y documentos de los archivos de Protocolos (Barcelona: Colegio  Notarial de Barcelona, 1974), 195-198.

[2] Perez Fernandez del Castillo, Derecho Notarial, 274-291.

[3] Bono Huertas, Historia del Derecho Notarial,  208, 217, 226-7 and 246. Reyes Rojas García, "La literatura notarial castellana durante el siglo XVI y su difusión en América," Nuevo Mundo Mundos Nuevos, (30/01/2012); http://nuevomundo.revues.org/62407, accessed 8 Mar 2012.

[4] The doctrine that a buyer or seller may rescind the contract if the actual value of the item bought is fifty percent less than, or greater than, the just sale price during the four years following the date of sale. See Figure 7-14a for an example of its usage.​