Distinction Between Conceptual Possibility,
Factual Possibility, and Reality.
2026 Update.

Law: Contemporary Approach and Analysis

1. Articulation with previous analyses

This article is part of a series of interrelated analyses on the same real case. For a comprehensive understanding of the factual and normative foundations, reading the previous works is recommended:

• "Public Faith, No Contradiction, and the Administration of Justice. 2026 Update": exposes in detail the case, the judicial resolutions, and the applicable normative framework (arts. 289 to 312 of the CCyC Nación, SCBA Agreement 3354, etc.).
• "Essay on the Logic of the Case. 2026 Update": develops the judicial syllogism, the theory of predicates, and the application of the law of double negation to the normative conflict.
• "Notarial Public Faith, Rebuttal of Fraud, and Procedural Nullity: An Updated Doctrinal Analysis": synthesis article that systematizes the doctrine of Zinny, Rivas, Liberatore, and Provenzani Casares, updated to the CCyC Nación and the CPCCBA Law 15,240, with special emphasis on the distinction between public faith of perception (notifier) and public faith of relation (court clerk), and on the suitable impugnative paths.

This essay addresses the philosophical dimension of the distinction between conceptual possibility, factual possibility, and reality, applying it to the same case to draw conclusions on judicial reasoning and professional responsibility.

2. Logical (conceptual) possibility

Knowledge referring to facts encompasses both possibilities and realities. Following the distinctions of the philosopher Mario Bunge, it is necessary to distinguish three fundamental concepts: logical (or conceptual) possibility, factual (or real) possibility, and effective reality.

Logical (or conceptual) possibility refers to that which does not contradict the laws of logic nor the norms of a given system. In the legal realm, a proposition is logically possible if it is consistent with the current normative system, even if it has not been verified in practice. For example, that a public instrument be impeached through the suitable procedural path is a logical possibility: if it documents the substantive legal business, the incident of rebuttal of fraud corresponds (art. 296 CCyC Nación; art. 393 CPCCBA Law 15,240); if it is a procedural act, the incident of nullity corresponds (art. 149 CPCCBA Law 15,240).

As Rudolf Carnap taught, symbolic logic allows analyzing the structure of propositions without attending to their empirical content. From this perspective, the predicate "must be impeached through the suitable path to remove its presumption of authenticity" is logically necessary for every public instrument, while the predicate "must not be impeached" is logically contradictory with the premises of the Argentine normative system.

3. Factual (real) possibility

Factual (or real) possibility is that which is consistent with the laws of nature and the social context, even if it has not yet occurred. These are events that can happen in the real world, regardless of whether they are desirable or permitted by norms. As Bunge points out (Philosophical Dictionary, p. 219), what is factually possible is that which "may or may not happen" (What may or may not happen).

In the examined case, the possibility that a court disregards the public faith of a public instrument without due impeachment is, unfortunately, a factual possibility. Although it is logically contradictory with art. 290 of the CCyC Nación (which requires the declaration of falsehood in trial to destroy the public faith of perception), in judicial practice irregular situations can occur where a judge prefers a judgment of the court clerk (which only has public faith of relation) over the notarial act (which has public faith of perception). This factual possibility was updated in the real case that occurred between 2008 and 2011 in the Judicial Department of San Martín.

4. Effective reality

Effective reality is everything that exists in the external world and is found in our subjective experience (Bunge, cited work). It is what has effectively occurred, beyond what was logically or factually possible.

In the analyzed case, the effective reality is constituted by the following objective records, arising from the file:

• The notification writ was processed and informed by the Notifying Officer, with detail of the accompanied copies (public instrument with public faith of perception, art. 290 CCyC Nación).
• The Court Clerk issued a contradictory report, affirming that copies of the complaint had been accompanied (act with mere public faith of relation, lacking direct perception of the facts).
• The magistrate suspended the procedural deadlines based exclusively on said report, without opening the incident of falsehood nor the incident of nullity.
• The incident of rebuttal of fraud was rejected "in limine" by Dr. XXXXXXXXXX, without ex officio re-channeling towards the path of the incident of nullity.
• The parties reached an agreement that left the factual contradiction unresolved.

This effective reality, documented in the file with certified copies, constitutes the factum probandum that any rigorous analysis must respect, regardless of subjective opinions or institutional conveniences.

5. Application to the case of public faith

According to the current legal system (art. 290 CCyC Nación), public faith validly justifies on the veracity of the narrating official (regarding the act they perform or the fact in question), unless, judicially, it is proven that they have lied or made a mistake. As Mario A. Zinny taught, public faith only covers facts that the official perceives "intersensorially" (sight and hearing), not the judgments they issue about them.

That is, a public instrument makes full faith (logical possibility) until it is declared false by firm sentence (logical possibility derived from the same norm, art. 296 CCyC Nación).

This constitutes the essence of the public instrument: without that property, it would not exist as such. However, in fact, it could happen that its probatory value is disregarded or ignored, even if it was not impeached in due form. This is conceptually impossible (since it introduces a logical contradiction in the normative system), but it is a real possibility (fact possible in judicial practice).

That real possibility could, in turn, configure another conceptual possibility: the irregular compliance with the legal obligation to administer justice, with eventual disciplinary, civil, or criminal consequences for the intervening officials and lawyers.

6. Consequences for judicial reasoning and professional responsibility

For the purposes of avoiding an "idealization" of the Justice service, irrefutable "dogmas" or "subjective" value judgments (motivated by tastes, feelings, or personal or political conveniences) should not be accepted before duly accredited facts and a justified argumentation (A justifies B, where A is the body of pertinent norms).

What is expected from the Justice service is that what is decided by the judge can be verified (contrastability) by its coherence (absence of contradictions) and its adequacy to the objective records of the case and the body of pertinent knowledge (applicable regulations, doctrine, and general principles of law).

Trust in the Administration of Justice, unlike faith (religious dogma or unfounded belief), must contain rational foundations. It is weakened through the summation of negative experiences, occurring in the exercise of professional practice, in which effective reality departs from the logical possibilities that the legal system guarantees.

In the examined case, the magistrate substituted a problem of law (quaestio juris) —determining if the notarial act could be disregarded without due impeachment— for a problem of fact (quaestio facti) —deciding which version of the facts was more convincing to them, without opening a probatory period. This error, logical and legal, affects the legitimacy of the system and violates the principle of objective legal truth (SCBA Agreement 3354, art. 5 inc. c).

Procedural corollary (in line with the doctrine of Liberatore and Camps): From the perspective of impugnative paths, this logical error translated into the liminar rejection of a misdirected incident of rebuttal of fraud. According to the doctrine of Gloria L. Liberatore and the principle of ex officio re-channeling, built doctrinally and jurisprudentially on the principles of effective judicial protection (arts. 17 and 18 CN), procedural economy, and objective legal truth, as well as the ordering and instructing powers provided in Arts. 34 and 36 of the CPCCBA (Law 15,240) —which impose on the judge the duty to order the necessary diligences to clarify the truth and avoid the paralysis of the process—, and the prohibition of excessive formalisms that lead to denial of justice, the court should have re-conducted the claim towards the incident of nullity, instead of dismissing it liminarly. The lack of re-channeling aggravated the systemic contradiction and consolidated a disvaluable effective reality.

6.1. Analysis of a particular situation: the disciplinary sanction to the complainant

As part of the effective reality subsequent to the case, a phenomenon was observed that deserves an objective analysis from the theory of possibilities. One of the persons who denounced the irregularities and who had strictly complied with the applicable adjective and substantive regulations —promoting the incidents of nullity and rebuttal of fraud, and denouncing the facts before the Bar Association, criminal justice, and the Undersecretariat of Disciplinary Control of the SCBA— was subsequently the object of a single and late disciplinary sanction (applied after having suspended their professional activity).

To understand this phenomenon within the framework of the analyzed triple distinction, it must be remembered that the right to defense in trial (art. 18 CN; art. 8 CADH) demands that every notification be effective, that is, that it reaches the knowledge of the interested party in time and form so that they can exercise their right to be heard and to control the proof. The mere notification to a legal domicile that has ceased to be used due to the passage of time —as frequently occurs in succession proceedings or in files that remain long periods without activity— is insufficient to guarantee due process. In such cases, jurisprudence and doctrine (Fenochietto-Arazi, Procedural Code...) demand that the court or disciplinary body exhaust precautions, for example, reiterating the notification to the real domicile denounced by the professional or to the constituted email address.

Analyzing the particular situation from the triple distinction:

• Logical (conceptual) possibility: The normative system foresees that disciplinary sanctions must be notified in due form, respecting the right of defense of the professional. A sanctioning procedure that dispenses with an effective notification to the current domiciles of the accused is, from a logical point of view, incompatible with the Rule of Law (art. 18 CN; arts. 8 and 25 CADH).
• Factual (real) possibility: It is factually possible that a disciplinary control body, due to error, negligence, routine attachment to an inactive procedural domicile, or other reasons, sends the notification and the transfer of documentation to a correct but non-current legal domicile due to the time elapsed since its last use, and that this results in a sanction dictated without due contradictory. It is also factually possible that the person who denounces irregularities is, paradoxically, the recipient of a sanction, while the officials and lawyers who incurred in the original irregularities, those who became aware of them and did not denounce them, and those who ignored them, are not investigated nor sanctioned.
• Effective reality: In fact, a disciplinary sanction notified in a dubious manner was verified, without effective transfer of the documentation —at least no transfer was received at the domicile denounced as real nor at the correspondence domicile, denounced in the act dated August 23, 2006 (as recorded in the professional file)—, and applied when the professional had already suspended their activity. This effective reality must constitute an objective data of the disciplinary file^[1].

From the perspective of the doctrine of Ariel Ariza, this situation evidences a fracture in the "constant communication" between the normative system and institutional praxis. The person who complies with the duty to denounce irregularities (arts. 1, 2, 5, and 21 of the Code of Ethics of the Bar Association of the Province of Buenos Aires) should not be, in a coherent system, the one who is sanctioned, while those who participated in the original irregularities or knew of them and did not act remain exempt from responsibility. The occurrence of this phenomenon —factually possible, but not logically justifiable— erodes trust in the disciplinary control mechanisms and discourages the collaboration of professionals with the purification of the justice service.

As Carnap taught, logic does not prescribe how the world should be, but allows detecting contradictions in systems of statements. The contradiction between the normative provision of a disciplinary due process with effective notification and the effective reality of a sanction dictated with irregular notification, added to the paradox of sanctioning the complainant instead of the officials and lawyers involved in the original irregularities or who knew of them and did not denounce them, constitutes a systemic incoherence that should be corrected by the competent authorities, in compliance with the principle of objective legal truth (SCBA Agreement 3354, art. 5 inc. c) and express provisions of the professional Code of Ethics.

^[1] Clarification note: The undersigned, for various reasons, has not been able to access the disciplinary file to verify its content. Therefore, the reference to the sanction is based on publicly known information, without prejudice to the fact that, if access to the file is obtained, greater precision could arise. This clarification is formulated for the purposes of the strictest objectivity and transparency.

📚 Links of interest, cited doctrine, and updated regulations

• Main article: Public Faith, No Contradiction, and the Administration of Justice
• Complementary article: Essay on the Logic of the Case
• Synthesis article: Notarial Public Faith, Rebuttal of Fraud, and Procedural Nullity
• Civil and Commercial Code of the Nation (CCyC Nación), arts. 289 to 312 (Public instruments).
• Civil and Commercial Procedural Code of the Province of Buenos Aires (Law 15,240), arts. 34, 36, 120, 135-151, 149, 238 and 241 (reconsideration), 248 (subsidiary appeal), 393 (rebuttal of fraud).
• SCBA Agreement 3354 (Disciplinary Regulation).
• Agreement 3397/08 (Notification Service Regulation).
• Bertolino, Pedro, La verdad jurídica objetiva (Objective Legal Truth), 2nd ed., LexisNexis, 2007. (Commented by Nicolás Guzmán in JA 2008-I-1418). (Work cited and analyzed in accordance with the right to quote of art. 10, Law 11,723).
• Bunge, Mario, Philosophical Dictionary, Prometheus Books, 2003; Diccionario de Filosofía, Siglo XXI, 2005. (Work cited in accordance with the right to quote of art. 10, Law 11,723).
• Camps, Carlos Enrique, Código Procesal Civil y Comercial de la Provincia de Buenos Aires (Anotado - Comentado - Concordado) (commentary on art. 36). (Work cited and analyzed in accordance with the right to quote of art. 10, Law 11,723).
• Carnap, Rudolf, Introduction to Symbolic Logic and Its Applications, Dover Publications, 1958. (Work cited in accordance with the right to quote of art. 10, Law 11,723).
• Ariza, Ariel C., "En torno al razonamiento judicial en Derecho Privado" (On judicial reasoning in Private Law), JA 2004-I-1038. (Work cited and analyzed in accordance with the right to quote of art. 10, Law 11,723).
• Provenzani Casares, Ariel E., "El 'silogismo judicial' y los 'argumentos de respaldo'" (The 'judicial syllogism' and the 'backing arguments'), APBA 2014-01-20. (Work cited and analyzed in accordance with the right to quote of art. 10, Law 11,723).
• Zinny, Mario Antonio, "Falsedad ideológica" (Ideological falsehood), LL 2006-C-1032. (Work cited and analyzed in accordance with the right to quote of art. 10, Law 11,723).
• Rivas, Adolfo A., "De las notificaciones y la redargución de falsedad" (On notifications and the rebuttal of fraud), LL 1993-A-518. (Work cited and analyzed in accordance with the right to quote of art. 10, Law 11,723).
• Liberatore, Gloria Lucrecia, "Nulidad de notificaciones y redargución de falsedad. Intervención del oficial público" (Nullity of notifications and rebuttal of fraud. Intervention of the public official), Sup. Doctrina Judicial Procesal 2009 (September), 74. (Work cited and analyzed in accordance with the right to quote of art. 10, Law 11,723).

Final note: The references to the real case, including the judicial providences and the names of the officials and lawyers, have been anonymized or generalized to preserve the impartiality of the analysis and avoid personalizing the criticisms, without affecting the logical-legal rigor of the exposition. The analysis of the disciplinary situation is presented as an objective statement of occurred facts, not as a personal claim, for the purposes of illustrating the possible (factually possible) consequences of the systemic contradictions pointed out here.