Mistakes are human. We can all make mistakes, we do it every day, and despite having done it and being real our purpose of amendment, we do it again, thus man being the only animal that stumbles twice on the same stone.
There are also errors in public deeds:
a.- The error can come from the Notary, although not as many times as people tend to believe.
b.- On other occasions, the error results from the data that is offered to the Notary to prepare the deeds.
c.- And in there may be errors that result from the negotiations of the parties, and that the document does not conform to what is really wanted.
The error is correctable
What we must take into account that the error is always rectifiable, except in those cases in which the error generates the nullity of the contract.
a.- The Notary's errors.
As the Notary, by himself or through his employees, writes the deed, he is also responsible for the correctness of its writing.
I would say two basic points about the actions of the Notary in the drafting of the deeds.
The deeds must be understandable
From a purely formal point of view, the document it should be understandable, and thus in accordance with article 148 RN, in the writing of the deeds a clear, pure, precise style must be used, without obscure or ambiguous phrases or terms, and observing, in accordance with the Law, as essential rules, the truth in the concept, the property in the language and the severity in the form.
The deeds must be in accordance with the common will of the grantors
More important than this formal correction is that the document must be in accordance with the common will of the grantors, and thus in accordance with article 147 RN, the Notary must investigate, interpret and adapt to the legal system, and will inform those of the value and scope of its drafting, in accordance with article 17 bis of the Law on Notaries.
All this nonsense is the wording in legal terms, that the people who come to the Notary are not experts in law, and that the function of the Notary is to translate into legal language, their will, intentions and desires. I remember that many years ago, when asked what a Notary does, the best answer that occurred to me at that time was to say that we were dedicated to giving legal form to people's occurrences.
Drafting according to minutes.
In recent times it is common for certain documents to be drafted, not directly by the Notary, but in accordance with the draft of one of the granting parties, as is the case of Banks and their real estate companies. In such cases, the Notary must record that the document has been drafted according to the minutes and, if he knows, the part from whom it comes and if it obeys the general conditions of its contracting.
Reality shows us that the enormous difference in quality exists between the document that comes exclusively from the Notary, and that which comes from legal consultancies, which, like everything in life, there are very good ones and there are very bad ones. As a notary, I learn or try to learn from everyone, and I enjoy when the documentation they provide me is of high quality, as this benefits me and everyone, in terms of cost and speed. But, unfortunately, there are more cases in which the grants according to minutes leave much to be desired, and not because they are illegal or abusive, they are simply cumbersome, and totally far from Gracián's ideas, which were repeated to me so much at the College, of that "The good thing if brief twice good."
b.- Errors in the data provided to the Notary.
I am not going to deny that these errors are much more frequent than is desirable, due to the immense number of data that the law obliges us to record in the deeds. In most cases, the responsibility of the notary is very low, but once the error is verified, people usually appear saying that the notary has made a mistake. Among the advice they gave me when I started my professional career, was “…and remember that the Notary is always to blame.”
Surely all notaries have experience that the identity document of the proxy is wrong, that the CNAE of some company has provided us incorrectly, that some address information, marital status has been entered incorrectly, or in more serious cases that one farm has been sold for another.
The only way to avoid these errors is to be very careful in checking those data that from experience can generate errors, but in reality they are not avoided.
The important thing is to remember that those mistakes with everyone's agreement can be rectified.
c.- The errors of the parties.
Actually, when I started this post, I was thinking of writing only about this type of errors, those of the parties, which would serve me to comment on the recent Supreme Court Judgment of February 2, 2016.
This sentence raises a very frequent case that occurs in the sale of what are now called real estate assets, and that are the errors in the very object of the sale or its circumstances, and that derive from the management of such properties.
In the deeds of sale of flats from the banks, it is very common that no one knows the situation of the state of community expenses, or if they are up to date with the electricity and water bills or if they really have meters. It is true that all these expenses are then paid from the sale price, but buyers are left with a face, to put it finely, of a certain perplexity, when verifying that there is no one responsible who can provide reliable information on important aspects of a sale. , which is of great value to them, and when asked to change the slightest comma in writing, they are answered "I am not allowed”.
The facts that the aforementioned declares proven are much more serious, since it is a case in which a Bank, before granting a deed of sale, informs the buyer of the properties that he is going to buy, he is shown a cadastral plan and he is allows you to visit those farms, but once the deed is signed, it turns out that the plots purchased and paid for and identified in the Land Registry do not correspond to the plots that you had been shown.
The judgment finally agrees with the buyer considering that there was an obstative error in the face of the allegation of the selling bank that what was there was a vice error.
The difference between obstative error and vice error.
In the obstative error, what happens is that there is a divergence between the declared will and the real will. In other words, to explain it clearly, if I sign a deed thinking that I am buying a farm, and it turns out that the farm is another, the contract does not really exist. This is the approach of the sentence.
In the vice error, on the contrary, what occurs is that the buyer believes that the property has different characteristics from those that it actually has, and that error could not be detected with medium diligence. We are not talking about the fact that a sale can be canceled because the refrigerator does not fit, since checking these facts is the responsibility of the buyer, but about important errors, as they constitute the reason for entering into the contract. An example of a vice error would be to believe the property has some constructive characteristics, which it does not really have, and which may cause its immediate demolition.
The consequence of the distinction between the two types of error is that the vice error constitutes a cause for voidability of the contract, whose action is subject to an expiration period of 4 years (article 1300.1 CC), while the obstatative error determines that the contract is non-existent due to the lack of one of its fundamental requirements, such as consent, in addition to the object and the cause, and the action with which it intends to challenge it is not subject to a term.
In Lleida on March 7, 2016.