RESPONSABILIDAD CIVIL NOTARIAL POR NEGLIGENCIA EN SUBASTA: EL REQUISITO DE LA COMUNICACIÓN AL PROPIETARIO CONSIGNANTE, BIOLOGÍA DE LA PRETENSIÓN PROCESAL E INCIDENCIA DE LA DOCTRINA DE EQUIVALENCIA DE RESULTADOS.

Abstract

Because notaries are public officers for oaths, the system of rules on notaries' civil liability seeks to ensure that notaries perform their functions properly, particularly when notaries check that the acts to which they are party are lawful. Even so, there is no homogeneous system of rules. Notaries' civil liability is, however, expressly addressed in article 146 of the Notarial Regulation, which cautions, «The notary will hold civil liability for damages caused by his action through wilful misconduct, negligence or inexcusable ignorance». Therefore, a notary may hold contractual liability, extracontractual liability, or even both at the same time, as the Supreme Court has had the occasion to rule. This article looks at the Supreme Court's ruling of 9 March 2012 and the foreclosure procedure in article 1,872 of the Civil Code. It is worth bearing in mind that, as notification of disposal of the pledge is mandatory, the notary must ensure that all rules of form are obeyed. In the case at hand this is particularly important. The auction instructions were not based on the existence of a duly furnished pledge, but on the fact that the person ordering the auctions had withheld certain containers. Lack of due diligence was obvious, as the auctions were declared null on the grounds that the person ordering the auctions had no right to withhold and dispose of the containers.