How valid is an agreement signed before a notary?

Question

José Manuel Alburquerque · Accepted Answer

If it is signed as a public deed, the agreement is binding like any contract and is also an enforceable instrument. This means that, if the other party does not honour it, you can apply directly to the court to have it enforced, for example by attaching their assets, without a prior trial and without first attempting another agreement. The notary checks who is signing and that the content is not unlawful. It can only be annulled on the grounds that invalidate any contract, such as mistake, deception or intimidation. A simple certification of signatures (“legitimación de firmas”), in which the notary only attests to who is signing, does not have that force. Public deed or certification of signatures When an agreement is said to have been signed before a notary, this can mean two very different things: The public deed. The notary identifies the parties and checks that they have capacity to bind themselves and that what has been agreed is lawful. The notary keeps the original in the notarial protocol, which is the archive of the notary's deeds. The parties are given authorised copies. The deed proves the date and what was agreed. The certification of signatures. The notary only attests that the signature is that of the person who claims to have signed, without reviewing the content. The document remains a private one. Only the public deed gives the agreement enforceability. With a certification of signatures, if the other party does not comply, you will have to bring a claim in court, although it will be harder for them to deny that they signed. What to do if it is not honoured With the deed, you do not need a trial in which the judge decides who is right. You can go straight to enforcement, following these steps: Ask the notary, if you do not already have it, for the copy of the deed that can be used for enforcement. File the enforcement application with the court, normally with a lawyer and a court agent (“procurador”). There is no need to attempt another agreement beforehand. The court orders enforcement and, if money is owed, the attachment of the debtor's assets, such as their bank accounts or their salary. The debtor can only object on limited grounds, for example that they have already paid. Its limits The deed provides a great deal of security, but it does not solve everything. These limitations should be borne in mind: It can only cover what the parties can decide for themselves. An unlawful agreement is not valid even if it is signed before a notary, which is why the notary will not authorise it. It can be annulled if one of the parties signed by mistake, as a result of deception or under intimidation. This has to be requested from the judge. If the debtor has no assets, the deed allows whatever there is to be attached, but it does not guarantee payment. The deed costs the notary's fees, which follow an official scale and depend above all on the amount involved. It is usually worth it when the agreement includes deferred payments or large amounts.