What is the difference between a private document and a public one?

Question

José Manuel Alburquerque · Accepted Answer

A public document is one authorised by a notary or another competent official, such as a notarial deed. A private document is one signed by the parties on their own, without a notary. As between those who sign it, a private contract is as binding as a deed. The difference lies in its value as evidence and in its effects on other people. A deed proves by itself who signed and when, including against third parties, allows registration in the “Registro de la Propiedad” (the Land Registry) and, if it records a debt, makes it possible to ask the court to enforce payment without a prior trial. What each one proves In Catalonia, as in the rest of Spain, these rules are those of the Spanish Civil Code (“Código civil”) and the “Ley de Enjuiciamiento Civil”, Spain's Civil Procedure Act. A public deed proves, even against third parties, the fact that gives rise to it and its date. As against those who sign it and their heirs, it also proves the statements they made in it. The notary identifies the signatories, assesses whether they have capacity, advises them and checks that the contract complies with the law. What the deed proves is that those statements were made, not that they are true. If it says that the price has already been paid, the contrary can be shown with other evidence. A private document constitutes full proof in court if the person it is used against does not deny that it is genuine. If they deny it, whoever relies on it has to prove that it is genuine, for example with an expert report on the signature. Moreover, against third parties its date only counts from when it is incorporated into or entered in a public register, from when one of the signatories dies or from when it is handed to a public official in the course of their duties. Having a notary certify the signatures on a private document, that is, attest to who has signed it, does not make it a public document. The notary does not certify its contents. What only a deed provides Registration at the Land Registry, which only accepts public deeds, court judgments and other authentic documents. Without it, anyone who buys a flat with a private document is left unprotected against third parties. Direct recovery of a debt. The copy of the deed issued for enforcement purposes allows you to ask the court for enforcement, for example the attachment of the debtor's assets, without a prior trial. With a private document, you first have to bring a claim in court and obtain a decision ordering payment. The validity of contracts that the law requires to be made by public deed, such as the gift of a property or a mortgage. Turning a private document into a public one If a contract for which the law requires a deed, such as the sale of a flat, was signed privately, either party can require the other to have it converted into a public deed, that is, to sign the same contract before a notary. If the other party refuses, they can be asked to do so in writing and, if no agreement is reached, sued so that the court compels them to do so, after first attempting a negotiation as the law generally requires. The cost of the deed is set by the notaries' official scale of fees and, depending on the contract, stamp duty (“actos jurídicos documentados”) may also be payable.