1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union regulations?
[‘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.]
Yes. They are regulated according to articles 2699 and 2700 of the Civil Code.
If so, what are they? Are these only notarial acts or also acts of other authorities?
These are in general all notarial documents: wills, inventories, gifts, matrimonial property agreements, real estate transactions, incorporation and modification of companies, loans and mortgages etc.
Other public office holders have the power to draw up authentic instruments, in limited fields or sectors: officers of public bodies (municipalities, ministries etc.), clerks of the court (these also for inventories and the waiver of inheritance), bailiffs (acts of protest or notification).
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
5. Enhanced probative value can be contested:
Before which authority: The court
According to which procedure (state the applicable rules): According to Articles 221 to 227 of the Code of Civil Procedure.
Within what timeframe: Until the authenticity of the document is established by a judgment which acquires the authority of res judicata.
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?
- Matrimonial agreements (communion or separation of property, acts of constraint of certain property to be used for the family’s needs).
- “Family pacts”, i.e. family agreements authorised by way of a derogation from the rights of reserve holders in favour of certain heirs only, and exclusively to regulate the continuity of the family business, even in derogation from the prohibition of agreements as to future successions.