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Some Notary Functions are possible via Video Conference

Armin Gutschick & Anja Sämann-Gutschick

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Digitalisation in Ibiza is progressing rapidly, and it is making the work of international lawyers much easier. An amendment to Spanish law that was passed in May 2023 (Ley 11/2023) brings significant changes in the areas of commercial and company law. Particularly noteworthy is the authorization since November 2023, to sign some notarized transactions via video conference. This makes it possible for foreign clients to perform some legal actions without having to visit a Spanish notary in person. In addition, this amendment - which is based on an EU directive - permits the electronic signing of company resolution certificates and their notarisation.

However, the list of notarised transactions that can be processed completely online does not include the signing of purchase contracts, loan agreements or wills. The Spanish legislature has exercised this bit of caution because, a fundamental duty of the notary is to check that the person signing one of these documents is doing so of their own free will and without coercion. In a video conference the notary cannot know for certain that the signer on the other side of the screen is not being coerced.
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This limitation does not apply to the signing of powers of attorney, which can be carried out entirely by video conference in a Spanish notary’s office. The prerequisite is that it is not a general power of attorney, but a limited power of attorney for a specific matter or purpose. However, it is important to point out that the special features of Spanish powers of attorney are not always the same as powers of attorney from other EU countries such as Germany. Here are some examples.

Under German law, a power of attorney is permissible beyond death. Spanish law, on the other hand, expressly stipulates that the power of attorney expires upon the death of the principal (see Art. 1732 No. 3 CC). A German power of attorney that is beyond death can only be effective in Spain if it is expressly stated that it is subject to German law. However, in practice this will not normally be sufficient for a Spanish notary, who will likely refuse to notarise it, unless the authorised representative can prove the content and scope of the German law with a legal opinion.

A German general power of attorney is often written very briefly and with regard to property matters the text is limited to a single sentence: I grant Mr/Mrs XY general power of attorney to represent me comprehensively in all financial and legal matters. In contrast, a Spanish general power of attorney only mandates the power to perform administrative activities (in accordance with Art. 1713 CC). A separate express authorisation is required to buy, sell, encumber or otherwise dispose of real estate. In Spain, a power of attorney granted in general form only authorises management, not buying, selling, etc. For these types of transactions, the power of attorney must be precisely defined in terms of object and scope.
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Powers of attorney in Spain are almost always issued in notarised form.
This even applies when a power of attorney given to a lawyer. The reason for this is probably because, in Spanish law, private written powers of attorney do not provide proof of the correctness of the date of issue. However, a notarised record provides incontestable proof of the date (“fecha cierta”), and it also requires the Spanish NIE number of the authorised representative.

When a notarised power of attorney is drawn up in accordance with Spanish law, the following cautions should be observed: always limit the term; regulate whether the authorised representative may conclude transactions with himself; be clear as to whether the right to grant a sub-authorisation should be permitted; in cases where there are several authorised representatives you must clarify in advance whether they can act individually or only jointly; and finally, make it clear whether an authorised representative is allowed to represent several principals at the same time (“multi-representación”).

Despite the legal differences that still exist in the EU countries, the changes mentioned at the beginning of this article will have a significant impact on the way we work. The options of remote signing and electronic certification open up new avenues for more efficient and modern notarisation. 

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