I partially borrow the title of this comment to present some ideas that have been coming to my mind for a long time, and that I have been delaying due to fear, laziness, or perhaps inability to express them. A few weeks ago, the book by Luis Garicano, called "El Dilemma de España", went on sale, in which he makes an exposition of the elements that contribute to the wealth of nations, to later analyze the Spanish reality, and make a exposure of the things that must change in order to become a prosperous country.
What does this have to do with the notarial profession? Well, to my understanding that the crisis that we have been experiencing for several years affects all institutions, and that the remedies that are postulated as general also have a particular application.
If we observe the evolution of the notarial profession in Spain, for which it is only necessary to go to the book that was published last year, on the occasion of the 150th anniversary of the Notarial Law, called APPARE: SPAIN, whose authors are Fernando García de Cortazar and Ricardo Martín de la Guardia, the period in which the notarial profession, and in general the entire Spanish administration, has had the greatest prestige, is the one that goes from the end of the Civil War to the year 1986. It is spoken in certain circles of a glorious era, a moment in which many of the best heads of the country ended up in the high bodies of the administration, and from the administration itself a highly technical legislation is promoted, whose execution corresponded to officials of high preparation and independence .
Since 1986 the Spanish administration has been eroding, losing the prestige band it had until then, and the figure of the adviser and political positions is appearing as subjects that begin to control the administration, the technical component in the decision disappearing. of their decisions, being a totally corrupt system the one that lives in the time of the real estate bubble, happily burst.
Focusing on the notarial profession, since 1986, it seems that the big banks are bothered by having independent controllers, and a process begins, which goes from the existence of distribution shifts between notaries and/or compensation mechanisms, such as way of guaranteeing their independence (in colloquial terms having guaranteed chickpeas at a minimum level) to a control of notaries by the large operators, concealed in the need for greater agility. The large banks, relying on the principle of free choice of notary, imposes on clients where to sign their operations, forgetting that the choice of notary corresponds to the consumer or user.
From the point of view of notaries in particular, the situation arises that being in this system produces high benefits, without the need for a large investment in human capital, via self-training or that of employees. Notaries, evidently not all, but a considerable number, launch themselves in search of those clients that provide them with important margins, forgetting that the sense of their profession is at the service of the citizen, and the norm that governs notarial contracting, the so forgotten free choice of notary.
The ways to enter these systems are highly varied, and some cause embarrassment, but basically all of them conceal some payment system in favor of the bank, such as direct commissions to bank representatives, gifts that exceed of mere courtesy, maintenance of important balances in financial institutions, invitations to dinners or trips, payment of Christmas meals, participation in companies, purchase of flats from related real estate companies…. Personally, it makes me blush when a close relative of a minister is a member of an organization whose main mission is to oversee the government, or when a notary public participates in a governing council of a Savings Bank, which later becomes its biggest client.
All this is true in the notarial profession. Obviously not all notaries. This is what has to be tackled, because putting a simile with administrative contracting, not accepting the right to free choice of notary public by consumers, is like rigging administrative contracting, of which we so frequently refer in newspapers and from my point of view there is the same degree of corruption in one case as in another.
Stated in a schematic and simple way, the great problem of the notarial profession, which has been the abandonment of the essence of its function, I believe that in an evident way the elements of change that we need can be extracted, which are coincident with the others that it has the country and that I borrow from LUIS GARICANO: greater competition, a correct definition of what competition is; compliance with existing rules; and a system that allows rewarding the good guys and punishing the bad guys (so that in the end everyone is good).
