1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union legislation?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they? Are these only notarial acts or also acts of other authorities?
According to Article 369 of the Civil Code, the document shall only be authentic when the authority or public official that will sign the document is competent by reason of the subject matter and place and is not legally prevented from signing it.
However, the document drawn up by a public official exercising his or her functions shall be deemed to have been drawn up by a competent public office-holder.
These are therefore notarial instruments, but also instruments of the courts or civil registrars, etc.
Also, according also to article 371 of the Civil Code, the authentic instrument provides full proof of the facts they state as practiced by the respective public authority or official, as well as of the facts which are certified in them on the basis of the perceptions of the documentary body; the mere personal judgments of the documentary are only valid as elements subject to the free evaluation of the court.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns
- The date on which the authentic instrument was drawn up
- The place where the authentic instrument was drawn up
- The signature by the parties of the authentic instrument
- The parties’ declarations
- Any observation made by the authority within the limits of its competence
- The measures the authority declares to have taken
- Appearance, identification and consent of the parties
- Capacity of the parties to grant the instrument
5. Enhanced probative value can be contested:
Before which authority: Judicial authority
According to which procedure (state the applicable rules):
Probative value can only be refuted, due to the falsity of the document (Article 372 CC).
Within what timeframe: At any time by the interested party and may be automatically declared by the court.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
1. What types of family law instruments exist?