DEPOSITS BEFORE A NOTARY PUBLIC
I. NOTARIAL DEPOSIT RECORDS: REGULATION, PROCEDURE, AND LEGAL EFFECTS
The Notarial Regulations address Deposit Receipts in Articles 216 and 217.
Article 216 regulates the possibility for notaries to receive objects, securities, documents, and money on deposit, either as collateral for contracts or for simple safekeeping. Several key aspects are established:
1. Voluntary Participation of the Notary:
The notary is not obligated to accept the deposit unless required by law.
The notary may impose conditions on the depositor, except when the deposit is mandatory by law.
2. Electronic Deposits:
Specific rules are detailed for documents in digital format:
The digital medium must be deposited for a period and under conditions agreed upon with the depositor.
-.- The deposit certificate must include the technical characteristics of the document (date, format, length, etc.).
-.- The content may be transferred to a new medium for preservation purposes, always guaranteeing the reliability of the copy.
-.- The notary will only return a deposit when the stipulated conditions are met.
3.- Guarantees of the Deposit:
-.- Deposits intended to guarantee acts or contracts contrary to the law or public order are prohibited.
-.- In the case of computer programs, the notary will only accept them if the depositor declares that their content is not illegal.
Article 217 – Formalization of the Deposit
This article details the procedure and guarantees that the notarial deposit must meet:
1.- Deposit Certificate:
-.- It is formalized by means of a certificate signed by the depositor and the notary.
-.- It establishes the conditions for the creation and return of the deposit.
-.- It must contain all the information necessary for the identification of the deposited item.
2.- Security Measures:
-.- Sealed Items: If the item requires identification, it will be closed and sealed in the presence of the notary to prevent tampering.
-.- Cash Deposits: The notary cannot generate interest on the deposited amounts. A non-interest-bearing account must be opened, and the notary cannot manage the funds.
3.- Bank Custody:
-.- If deemed necessary, the notary may store the deposits in a bank, in a safe deposit box rented in their name.
-.- This safe deposit box may only be opened by the notary, their legal substitute, or by written order of the Board of Directors of the Notarial Association or the General Directorate.
II. DEPOSIT IN NOTARIAL CONSIGNMENT (ARTICLE 69 OF THE ORGANIC LAW OF THE NOTARY PROFESSION)
The Organic Law of the Notary Profession (LON) also regulates a type of notarial deposit, but in a different context than voluntary deposit agreements.
Article 69 LON establishes that notaries may intervene in procedures for offering payment and consignment, which entails the possibility of certain assets being deposited with the notary.
Unlike voluntary deposits, here the notarial intervention occurs as part of a procedure for fulfilling obligations.
1. Nature of the deposit in notarial consignment
The deposit in notarial consignment is mandatory, since the notary must accept custody of the consigned assets when the legal requirements are met.
Its purpose is to allow a debtor to fulfill their payment obligation even if the creditor refuses to receive payment or collect the assets.
This procedure is especially relevant in situations such as:
- The creditor refuses to accept payment or is unavailable.
- Official proof of payment or delivery of goods is required.
- The aim is to prevent the debtor from defaulting, releasing them from their obligation.
2. Procedure and Formalization of the Deposit
The deposit procedure regulated in Article 69 of the LON follows these steps:
A. Offer of Payment and Request for Deposit:
- The debtor goes to the notary and expresses their willingness to fulfill their obligation through deposit.
- The interested parties must be identified, the reasons for the offer of payment explained, and the purpose of the deposit described.
B. Deposit of the Asset According to its Nature:
All consigned assets are objects of payment or consignment, but not all objects of payment or consignment are managed in the same way:
✔ If it is money or securities, it is deposited in an official bank account.
✔ If it is other movable property, it can be deposited in a suitable establishment.
-.- If the consigned assets are money, securities, or financial instruments, the notary must deposit them in a financial institution that collaborates with the Administration of Justice.
-.- If they are movable assets of another nature, the notary must arrange for their deposit in a suitable establishment, ensuring their proper preservation.
This refers to assets that are not money, securities, or financial instruments.
movable property, that is, physical movable assets such as documents, merchandise, works of art, etc.
"The Notary will arrange for their deposit or entrust their safekeeping to a suitable establishment."
The verb "will arrange" indicates that the notary has the authority to decide where and how these assets will be deposited.
It is mentioned that the notary may entrust safekeeping to a suitable establishment, which suggests that, in most cases, the deposit will be made in a location outside the notary's office.
However, the possibility that the notary may temporarily store them in the notary's office if deemed safe and appropriate is not excluded.
C. Notification to the interested parties and deadline for accepting payment:
The notary notifies the interested parties so that, within ten business days, they may accept the payment, retrieve the assets, or submit any objections.
D. Resolution of the case:
- If the creditor accepts the deposit, the assets are delivered, and the case is closed.
If there is no response, the deposited funds are returned to the debtor and the file is closed.
While the deposit in the notarial consignment system shares similarities with the voluntary deposit agreements regulated in the Notarial Regulations, its purpose and legal effects are different, as it forms part of a notarial voluntary jurisdiction procedure.
III. DEPOSIT IN CASES OF THEFT, LOSS, OR DESTRUCTION OF SECURITIES (ARTICLE 78 OF THE ORGANIC LAW OF THE NOTARY PROFESSION)
In addition to voluntary deposit agreements (Articles 216 and 217 of the Notarial Regulations) and the deposit in the notarial consignment system (Article 69 of the Notarial Law), Article 78 of the Organic Law of the Notary Public introduces another scenario in which the notary may intervene in proceedings related to deposits, although its purpose is different.
In this case, the notary acts within the framework of commercial law to protect the legitimate holders of securities or shares in the event of theft, loss, or destruction.
1. Nature of the Procedure and Purpose of the Deposit
The procedure regulated in Article 78 aims to protect the rights of the legitimate holder of securities that have been stolen, lost, or destroyed.
To this end, preventive measures are established, including the possibility of blocking the trading of the security and ordering the deposit of the goods represented by certain securities.
Notarial intervention is key to:
- Preventing the misuse of securities by third parties.
- Notifying interested parties and publishing the procedure.
- Guaranteeing legal certainty in commercial transactions.
2. Notarial Procedure
The procedure must be initiated by the legitimate holder of the security in cases of loss, theft, or destruction of securities, who requests the intervention of a notary.
The steps are as follows:
A. Request for the file and proof of standing of the interested party:
The legitimate holder of the security must prove that they have been dispossessed of it or that it has been destroyed or lost.
The notary verifies the identity and legal capacity of the applicant.
B. Notification to the issuer of the security and publication of the procedure:
The notary notifies the issuer of the security of the situation and, if it is a listed security, the governing body of the corresponding stock exchange.
A notice is published in the Official State Gazette and in a widely circulated newspaper so that any interested third party may appear.
C. Negotiation or Enforcement of the Instrument:
If the instrument represents shares, promissory notes, bills of exchange, or bonds, the notary may order that the transfer or collection not be carried out, or that the obligation not be fulfilled.
D. Deposit of Goods When Necessary:
If the instrument represents goods, the notary may order their deposit to prevent their delivery to an unauthorized third party.
Exception: If the goods are perishable or their preservation is very costly, the notary may authorize their delivery to the applicant if the applicant provides sufficient security.
E. Administration of Securities:
If the instrument represents shares of a company, the notary may appoint an administrator to exercise the rights of attendance and voting at general shareholders' meetings.
F. Resolution of the Procedure:
If there is no objection within six months, the applicant may begin to collect the interest on the instrument.
If there is no objection within one year, the notary orders the issuance of new instruments in favor of the applicant.
If a third party appears who purchased the security in good faith, it cannot be annulled, and the applicant must file a lawsuit against the person who acquired it in bad faith.
The notarial procedure regulated in Article 78 of the Spanish Notarial Law (LON) has a different purpose than other types of notarial deposits: to protect the legitimate holders of securities and prevent their misuse.
See also Articles 547 et seq. of the Spanish Commercial Code and 132 et seq. of the Spanish Law.
JV.
IV. COMMERCIAL DEPOSITS AND SALE OF DEPOSITED GOODS (ARTICLE 79 OF THE ORGANIC LAW OF THE NOTARY PROFESSION)
Article 79 of the Organic Law of the Notary Profession (LON) introduces another type of notarial deposit, primarily for commercial purposes, although it also allows for the deposit of movable property in a broad sense.
This refers to deposits of movable property, securities, or commercial instruments that may be made before a notary when required by law or by agreement between the parties.
Furthermore, this article empowers the notary to manage the presentation of commercial instruments for collection and, in certain cases, to organize the sale of deposited goods.
1. Nature and Purpose of the Notarial Commercial Deposit
The notarial commercial deposit differs from other types of notarial deposit because:
It is primarily linked to commercial and financial relationships, although it can also be applied to other movable property.
It can be mandatory if a law so establishes, or voluntary if the parties agree.
It is not limited to safekeeping, but can include the collection of negotiable instruments and, if permitted by law, the sale of deposited goods through a notarial auction.
2. Procedure and Powers of the Notary in Commercial Deposits
The procedure varies depending on the type of asset deposited and the purpose of the deposit. Article 79 regulates three main scenarios:
A) Deposit of Movable Property, Securities, and Commercial Instruments (Section 1)
It can be formalized through a deposit certificate when required by law or when the parties agree.
It includes movable property, securities, or commercial instruments, such as merchandise, shares, promissory notes, or financial contracts.
The main purpose is to protect the rights of the parties and ensure compliance with the conditions agreed upon in the contract or applicable regulations.
B) Deposit of Bills of Exchange and Negotiable Instruments (Section 2)
When the deposit involves bills of exchange, promissory notes, or other instruments that must be presented for payment or acceptance on a specific date, the notary may make such presentation at the depositor's request.
If the instrument is cashed, the deposit of instruments is replaced by a cash deposit, which will remain in notarial custody until its final disposition.
C) Sale of Deposited Goods (Section 3)
If commercial law permits the sale of deposited goods or instruments, the notary may convene and manage the sale at the request of the depositor or the depositary.
This sale is carried out by means of a notarial auction, in accordance with the regulations governing notarial auction deeds established in the Notarial Law.
The proceeds from the sale will be used as stipulated in the commercial law applicable to the specific case.
3. Relationship with other types of notarial deposits
The notarial commercial deposit shares certain similarities with other types of deposits regulated by the Notarial Law (LON) and the Notarial Regulations, but also presents key differences.
The distinctive characteristics of each are explained below:
VOLUNTARY DEPOSIT BEFORE A NOTARY (ART. 216-217 RN)
Voluntary nature: The notary may accept or reject the deposit.
Purpose: Safekeeping of assets by agreement between the parties, without mandatory legal intervention.
Disposition of the asset: It is returned to the depositor or the person designated in the deed.
Place of safekeeping: In the notary's office or in banks if the notary deems it necessary.
DEPOSIT ON CONSIGNMENT BY OFFER OF PAYMENT (ART. 69 LON)
Voluntary nature: The notary is obligated to accept the deposit if the legal requirements are met.
Purpose: To allow the debtor to fulfill their obligation by depositing payment when the creditor refuses to accept it.
Disposition of the asset: It is delivered to the creditor if accepted, or returned to the debtor if the creditor does not respond.
Place of safekeeping: In financial institutions collaborating with the Administration of Justice, if it is money or securities. Other assets may be kept in a suitable facility.
DEPOSIT IN CASE OF THEFT, LOSS, OR DESTRUCTION OF SECURITIES (ART. 78 LON)
Voluntary nature: The notary must process it if the applicant is the legitimate possessor.
Purpose: To block the negotiation or transfer of stolen or lost securities and, if applicable, order the deposit of goods linked to those securities.
Disposition of the asset: The securities may not be negotiated or executed while the proceedings are underway, and if they represent goods, these may be held in safekeeping until the situation is resolved.
Place of safekeeping:
Securities:
They are not physically kept at the notary's office, but the notary may order their trading or collection to be blocked and notify the Stock Exchange Governing Body if necessary.
Although the regulation does not explicitly mention safekeeping at the notary's office, this could be inferred from the purpose of the article and the measures the notary takes to protect the interests of the legitimate holder of the security.
Goods Linked to Securities:
If the notary orders the deposit of the goods, they are stored in a suitable place until the proceedings are resolved.
If their preservation is difficult or costly, they may be released to the applicant with sufficient security.
NOTARIAL COMMERCIAL DEPOSIT (ART. 79 LON)
Voluntary Nature: It is carried out if there is a legal basis or agreement between the parties.
Purpose: Safekeeping and management of goods and effects with the possibility of collection or sale.
Disposition of the Goods: They may be kept in deposit, presented for collection, or sold at a notarial auction.
Place of Custody: At the notary's office or in another location as permitted by commercial law.
Deposit certificates represent a fundamental tool in notarial law, guaranteeing the security and safekeeping of goods and documents.
The only "deposit certificates" in the strict sense are those of Articles 216-217 of the Notarial Regulations.
The other three procedures regulated in the Notarial Law (Articles 69, 78, and 79) involve deposits with a notary, but they are not traditional deposit agreements, since:
Article 69 (Notarial Consignment): This is a forced deposit for the fulfillment of an obligation.
Article 78: A notarial procedure to protect the legitimate holder of securities that have been stolen, lost, or destroyed.
This is not a voluntary deposit, but a security measure to prevent the misuse of the security.
Article 79: Commercial Deposit with the possibility of collection or sale of goods.
The notary plays a fundamental role in the safekeeping and protection of goods, documents, and securities.
