Notarial Public Faith, Rebuttal of Fraud, and Procedural Nullity: An Updated Doctrinal Analysis

Theoretical Framework and Application to Current Law

1. Conceptual Foundations: Public Faith and Legal Proof

This article addresses the issues of public faith, ideological falsehood, and the procedural mechanisms for its impeachment, integrating five doctrinal articles by renowned jurists. The analysis requires an unavoidable normative update: the original texts cite provisions of the Civil Code of the Nation (Law 340 of 1871) —such as Articles 979, 992, 993, and 994— which are now repealed. Consequently, substantive law references have been reformulated to the Civil and Commercial Code of the Nation (CCyC Nación, Decree 79/2014), in force since August 1, 2015. In the procedural realm, the Civil and Commercial Procedural Code of the Province of Buenos Aires (CPCCBA, Law 15,240) applies.

Public faith constitutes a pillar of legal certainty. The law sacrifices, to some extent, the search for absolute truth in favor of certainty and social peace, granting certain officials the power to legally impose belief in the veracity of their narratives. However, this privilege demands extreme rigor in the perception of facts and precisely delimits the procedural paths suitable for its impeachment: the incident of nullity and the rebuttal of fraud (impeachment for forgery).

Key Normative Update: Arts. 979 and 993 of the Vélez Civil Code have been replaced by Arts. 289 and 290 of the CCyC Nación. Art. 290 establishes that a public instrument provides full faith "that the act has been executed and of the facts that the public official declares to have been performed by themselves or to have passed in their presence." Art. 293 of the Penal Code (ideological falsehood) remains in force.

2. Updated Doctrinal Development (Five Articles)

2.1. Mario Antonio Zinny: "Ideological falsehood, form, and public faith"

Original concept: Zinny establishes a fundamental distinction between form (the act itself) and proof (the document that accredits it). He defines public faith as a "legally imposed belief" referring to the authorship of the instrument and the material existence of the facts perceived by the public official. He emphasizes that public faith only covers facts that the notary perceives "intersensorially" (sight and hearing), excluding value judgments (such as natural capacity or the notorious identity of a stranger), which do not enjoy public faith and, therefore, cannot constitute ideological falsehood if they turn out to be erroneous.

Normative update: Arts. 979 and 993 of the Vélez Civil Code have been replaced by Arts. 289 and 290 of the CCyC Nación. Art. 293 of the Penal Code remains in force. Zinny's thesis remains fully valid: the public faith of Art. 290 requires that the narrated fact be the object of direct sensory perception. When the public official issues a judgment (e.g., "is a capable person" or "I know their identity" without prior dealing), there is no granting of faith, but an opinion. Erroneous judgments by the notary generate civil or disciplinary liability, but do not constitute ideological falsehood, as they do not violate public faith.

2.2. Adolfo A. Rivas: "The notifying officer's writ as a public instrument and the rebuttal of fraud"

Original concept: Rivas analyzes the writ drawn up by the notifying officer, assigning it the character of a public instrument. He argues that, when accused of ideological falsehood in the writ's records (what the official says happened in their presence), the corresponding path is the rebuttal of fraud. He distinguishes between falsehood originating from the parties' statements—which can be challenged by simple contrary proof (e.g., if the person receiving the notice falsely states the defendant lives there)—and the intellectual or ideological falsehood of the public official, which requires dismantling the presumption of full faith through rigorous evidentiary effort.

Normative update: The character of a public instrument for notification writs is based on Art. 289 inc. b) of the CCyC Nación (public authorities in the exercise of their functions). Full faith is governed by Art. 290 of the CCyC Nación. The notification writ maintains its probatory hierarchy. The presumption of veracity obliges whoever intends to destroy it to assume a specific procedural burden. The rebuttal of fraud is not a mere request for suspension of terms, but an incidental claim that requires expressly alleging the falsehood, offering compelling proof, and assuming costs and potential criminal liabilities for false reporting.

2.3. Adolfo A. Rivas: "Incompatibility of the rebuttal of fraud incident in procedural acts"

Original concept: Rivas demonstrates that the rebuttal of fraud incident (designed for documentary proof of the substantive legal business) is incompatible with procedural acts, such as notifications. Applying the rebuttal of fraud to an act of the trial would inexorably paralyze the process. On the contrary, the incident of nullity is the suitable path to question the vices of procedural acts, allowing the same purposes as the rebuttal of fraud to be fulfilled without altering the course of the lawsuit.

Normative update: The CPCCBA (Law 15,240) regulates procedural sanitization and the incident of nullity (Arts. 149, 172, 178) as the mechanism to attack the vices of procedural acts. The rebuttal of fraud (Art. 395 CPCCBA) is reserved for when the veracity of the public instrument is directly attacked as a means of proof of the substantive right. If it is alleged that a notification suffers from a formal vice (e.g., lack of copies, Art. 120 CPCCBA), the incident of nullity applies. If it is alleged that the notifying officer lied about what they perceived, the rebuttal of fraud applies. Confusing both paths leads to defenselessness and arbitrary suspension of terms.

2.4. Gloria Lucrecia Liberatore: "Nullity of notifications and rebuttal of fraud"

Original concept: Liberatore systematizes the difference between pleading the nullity of a notification for generic vices (via Art. 149 CPCCN) and rebutting the official's records as false (via Art. 395 CPCCN). In the latter case, the intervention of the public official as a necessary party is inexcusable, as their faith and professional responsibility are directly compromised, and they must be granted the right to defense and proof.

Normative update: Arts. 290 and 291 of the CCyC Nación. The CPCCBA (Law 15,240) requires, in the processing of the rebuttal of fraud, the summoning of the public official who extended the instrument. The requirement for the public official's intervention in the rebuttal is a constitutional guarantee of defense. The public official is not a mere spectator; they are the holder of the questioned public faith. Their exclusion in the incident vitiates with absolute nullity the resolution declaring the falsehood, as it is dictated without the summoning of the essential party to whom the imputation is directed.

2.5. Ariel E. Provenzani Casares: "The judicial syllogism and backing arguments"

Original concept: Provenzani Casares analyzes the reasoning of judgments through the "judicial syllogism" (Calamandrei). He argues that it is not enough to state the major premise (norm) and the minor premise (fact); the judge must offer "backing arguments" that justify why the norm is applicable and why the facts are subsumed under it. The lack of these arguments constitutes arbitrariness.

Normative update: The duty to provide reasoning is a constitutional guarantee (Arts. 17 and 18 CN; Art. 168 Constitution of PBA). In the evidentiary realm, Art. 163 of the CCyC Nación (dynamic burden of proof) requires the judge to substantiate how they distribute the burden of proof based on who is in a better position to prove. A judgment that destroys the public faith of a public instrument based on mere reports from the Court Clerk's Office or statements of parties, without offering "backing arguments" that justify why the presumption of Art. 290 of the CCyC Nación is dismissed, suffers from a lack of reasoning. The judge cannot limit themselves to an apparent syllogism; they must materially justify the destruction of legal proof.

3. Practical Cases

PRACTICAL CASE N° 1: Nullity of service of process and Motion for Reconsideration against the Court Clerk's report

A. Original facts: Contract date: August 28, 2000 (promise of sale). Object of the litigation: compliance with the promise of sale, deed execution, and damages. Clause nine: extension of jurisdiction to the Courts of Gral. San Martín; special domicile for intimations: Junín street, Villa Ballester (buyer). The seller (plaintiff) reported an incorrect domicile (Ayacucho street, not contractually agreed). Successive writs returned by the Notifying Officer with the note: "required person did not live there".

B. Action by the buyer (defendant): On December 2, 2008, the defendant promoted an Incident of Nullity of the service of process of the complaint and all consecutive acts (Art. 149 CPCCBA Law 15,240). The Judge acknowledged the presentation and granted a 5-day transfer (fs. 73).

C. Development of the notarial conflict: The writ of transfer was issued with copies of 20 useful pages (meticulous detail: incident writ, promise, annex, cease and desist letter, tax bills, ID copies, notarial act, etc.). Notification to the plaintiff on December 11, 2008. Return by the attorney on December 16, 2008: claimed that a copy of the incident writ had not been attached, only copies of the complaint and documentation. The plaintiff returns her copy of the writ informed by the Notifying Officer, with an indication of the copies detailed in the instrument, along with copies of the complaint writ sealed by the plaintiff.

D. Court Clerk's report and problematic judicial decision (December 29, 2008): The Judge, based on a "report from the Court Clerk's Office" that merely transcribed the statements of the plaintiff's attorney, resolved to suspend the term to answer the complaint and order a new writ. The Clerk's report stated: "as arises from the records of the case, with the writ fs. 77/78 copies of the complaint, domain report... were attached" —omitting reference to the Notifying Officer's report on the executed diligence and the copies detailed in the instrument.

E. Critical analysis and correct impugnative path: The Court Clerk, when expressing how the procedural act of notification was materially executed (affirming that "copies of the complaint were delivered" and omitting the incident), is exceeding their fiduciary function of "faith of relation" (certifying what is in the file) to issue a "judgment" or "material certification" about a fact they did not witness. Following Zinny, judgments do not produce public faith; only intersensory perceptions (sight and hearing) generate it. The Court Clerk has public faith to certify copies (collation) and to testify to the existence of documents in the file (relation), but can never extend to the materiality of procedural facts they did not witness, because that is the exclusive reserve of the Notifying Officer's faith of perception (Art. 290 CCyC Nación).

Suitable impugnative path: The correct approach is the Motion for Reconsideration (Art. 244 CPCCBA Law 15,240) with Subsidiary Appeal (Art. 247 CPCCBA Law 15,240), not an autonomous Incident of Nullity. Foundations: (1) The providence ordering a new writ is a mere procedural step that does not justify the opening of an autonomous incidental process; (2) The motion for reconsideration directly attacks the Judge's error, forcing them to confront the "certification" of their Clerk with the Public Instrument (the Notifying Officer's act and the returned writ); (3) If the Judge confirms their providence, they will have unjustifiably denied compliance with their duty to provide reasoning (Art. 272 CPCCBA Law 15,240 / Art. 168 Constitution of PBA), by not offering "backing arguments" (Provenzani Casares) that justify why they displace the Notifying Officer's public faith based on a report from the Court Clerk's Office devoid of it.

What happens if it is erroneously attacked via rebuttal of fraud? Following Rivas's doctrine and the principle of procedural economy (Art. 160 CPCCBA Law 15,240: "The judge will direct the process avoiding formalisms that lead to its retardation"), the judge has the duty to re-channel the path. If a party files an incident titled "Rebuttal of Fraud" against a report from the Court Clerk's Office about a notification act, but the facts describe a vice in a procedural act, the judge cannot reject it in limine for inadequacy of the path. They must officiously redirect it to an Incident of Nullity, requiring the party to adapt their petition and offer pertinent proof, under warning of considering it withdrawn if they fail to do so. Doing otherwise would be falling into a "formalism that leads to retardation", violating due process.

What happens if the report is not attacked? Does it become "firm" and validate the falsehood? No, that paradox is dogmatically impossible due to the Hierarchy of Public Faith. The writ with the Notifying Officer's act is a Public Instrument (Art. 289 inc. b CCyC Nación) that enjoys full faith over the facts perceived proprios sensibus (Art. 290 CCyC Nación). The report from the Court Clerk's Office is a mere "Judgment" or "Faith of Relation". An act of lower hierarchy (an internal judgment or certification) can never acquire "res judicata" or "firmness" that allows it to destroy an act of higher hierarchy (notarial public faith). One cannot "validate" a report that lacks the legal aptitude to displace public faith. If the judge were to leave firm a report from the Court Clerk's Office that contradicts a notarial act, they would not be "validating" the report, but dictating an arbitrary sentence for lack of reasoning (violating Art. 168 of the Constitution of PBA and Art. 272 of the CPCCBA Law 15,240).

PRACTICAL CASE N° 2: Ideological falsehood in a public deed due to erroneous appraisal of identity

Facts: A notary authorizes a deed of sale. In the act, the notary records the routine formula "appears a capable person and of my knowledge, I give faith". Subsequently, it is discovered that the appearer was impersonating the true owner using an altered ID. The buyer criminally sues the notary for ideological falsehood (Art. 293 CP).

Legal problem: Does the notary's affirmation of "knowing" the grantor constitute ideological falsehood when in reality they only limited themselves to verifying their ID without having prior dealings with them?

Substantiated solution (Zinny): It does not constitute ideological falsehood. Public faith (Art. 290 CCyC Nación) only covers facts that the notary perceives sensorially. The affirmation "is of my knowledge" when the notary has no prior dealings with the grantor is not the narration of a perceived fact, but a judgment ("it seems to me that they are who they say they are according to the exhibited document"). The notary's judgments do not produce public faith. Therefore, there is no violated public faith, an indispensable requirement for Art. 293 of the Penal Code. The notary may be civilly or disciplinarily liable for their imprudence, but not criminally for ideological falsehood. Prosecuting the notary for ideological falsehood in this case is equivalent to prosecuting them for the homicide of a grantor who enjoys good health (Zinny).

PRACTICAL CASE N° 3: Impeachment of a notification writ: Procedural Nullity versus Rebuttal of Fraud

Facts: In an executive judgment, the defendant receives a notification writ. The act of the notifying officer states: "I deliver the writ and its copies to the defendant at their domicile, who signs the act of receipt". The defendant presents a simple brief to the judge stating: "I deny that they delivered the copies to me, the notifying officer is lying, I request the notification be rendered void". The judge, without giving intervention to the notifying officer or demanding the promotion of an incident, grants the request due to "doubts about the veracity of the act".

Legal problem: Is it procedent to destroy the public faith of a notification writ through a simple brief, without processing the nullity or the rebuttal of fraud?

Substantiated solution (Rivas / Liberatore): The judicial resolution is null for being arbitrary. The notifying officer's act is a public instrument (Art. 289 CCyC Nación) and enjoys full faith (Art. 290 CCyC Nación). To destroy it, the defendant should have opted for two paths: (1) Incident of Nullity (Art. 149 CPCCBA Law 15,240): if they allege a formal vice (e.g., lack of copies, Art. 120 CPCCBA), having to offer proof; (2) Rebuttal of Fraud (Art. 395 CPCCBA Law 15,240): if they directly attack the veracity of the notifying officer. In this case, the intervention of the public official is a necessary party (Art. 395 CPCCBA), who must be summoned to exercise their defense. A simple brief that only "sows doubts" is insufficient to dismantle the presumption of full faith. The judge should have rejected the request in limine or commanded the promotion of the formal incident under warning of considering it withdrawn.

PRACTICAL CASE N° 4: Deficient reasoning of the judicial syllogism and lack of backing arguments

Facts: In a lawsuit for damages, the plaintiff presents an extrajudicial transaction signed with the insurer. The plaintiff argues that the transaction is null due to the vice of subjective-objective lesion (Art. 332 CCyC Nación), arguing that they were in a state of physical and economic need after the accident. The judge of first instance rejects the claim with the following reasoning: "The transaction is a valid contract that extinguishes obligations (Art. 1904 CCyC Nación). The plaintiff signed freely. The invoked nullity is rejected".

Legal problem: Does a sentence that states the major premise (validity of the transaction) but omits the "backing arguments" to justify why the alleged vice of lesion is not configured comply with the duty to provide reasoning?

Substantiated solution (Provenzani Casares): The sentence is arbitrary and must be revoked. The judge cannot limit themselves to an apparent syllogism. They must offer "backing arguments" that justify the minor premise (the concrete case). The judge should have analyzed whether there was exploitation of need (subjective aspect) and patrimonial disproportion (objective aspect) in accordance with Art. 332 of the CCyC Nación. By omitting to weigh the facts alleged by the plaintiff and limiting themselves to the mere enunciation of the generic validity of the transaction, the sentence lacks external justification, depriving the plaintiff of their right to defense and oversight (Art. 168 Constitution of PBA; Art. 272 CPCCBA Law 15,240). It corresponds to annul the sentence and dictate a new one that analyzes in detail the concurrence or not of the vice of lesion.

4. Implications: The Role of the Court Clerk's Office and Impugnative Paths

The preceding analysis allows us to systematize the dogmatic and procedural implications of the distinction between the types of public faith and the correct impugnative paths:

1 Hierarchy of Public Faith: The Court Clerk is a public official (Art. 289 inc. a CCyC Nación) and enjoys public faith, but it is limited to three categories: (a) Public faith of collation ("I CERTIFY that the photocopy is a faithful reproduction of the original"); (b) Public faith of relation ("As appears in the records, at fs. X there is a document"); (c) The insurmountable limit: judgments. When the Court Clerk's Office states "it arises from the records of the case that with the writ copies of the complaint were attached" (omitting the incident that the notifying officer detailed in their act), they are NOT exercising public faith, but issuing a JUDGMENT that contradicts the public instrument they claim to be analyzing.

2 The rebuttal of fraud is incompatible with procedural acts: Following Rivas, applying the rebuttal of fraud to a procedural act (such as a notification or a report from the Court Clerk's Office about a notification) would inexorably lead to paralyzing the process. The procedural order offers a specific, agile path designed to sanitize the procedure: the Incident of Nullity (Arts. 149, 172, and 178 CPCCBA Law 15,240). Attempting a rebuttal of fraud here would be an error of nomen iuris that the tribunal must officiously re-channel, in application of the principle of procedural economy (Art. 160 CPCCBA Law 15,240).

3 The "falsehood" of the Court Clerk's Office is "civil" or procedural disloyalty: Following Zinny, the Court Clerk does not commit penal ideological falsehood (Art. 293 CP) because they do not have a fiduciary function over the facts they narrate. However, they incur a non-criminal or "civil" falsehood and grave procedural disloyalty. By issuing an administrative certification that contradicts a public instrument, they are inducing the Judge into error, who ends up dictating a providence based on a false administrative "truth". This conduct is sanctioned within the process through the nullity of the vitiated act and, eventually, with sanctions for litigating with recklessness and malice (Art. 45 CPCCBA Law 15,240).

4 The returned writ as compelling proof: When the plaintiff returns their copy of the writ where the Notifying Officer detailed the delivered pages (including the incident), they are tacitly confessing that they had in their power the instrument that detailed the delivery. The confrontation between the Notifying Officer's act (which enjoys full faith, Art. 290 CCyC Nación) and the writ returned by the plaintiff (which corroborates the act) demonstrates that the Court Clerk's judgment is materially erroneous or malicious. There is no need to rebut anything: it is destroyed with simple contrary proof.

5 Objective liability of the notification office: Agreement 3397/08 of the SCBA ("Regulation on the Regime of File Receptions, Archives of the Judicial Power, and Mandates and Notifications") establishes the objective liability of the Heads of Offices over the fidelity and accuracy of documents and information supplied. This regulation reinforces the presumption of veracity of the Notifying Officer's writ and limits the aptitude of reports from the Court Clerk's Office to displace it.

5. Conclusion and Perspectives

The update to the Civil and Commercial Code of the Nation and the Civil and Commercial Procedural Code of the Province of Buenos Aires (Law 15,240) has not modified the dogmatic essence of public faith, but it demands supreme technical rigor in its procedural application. The doctrine of Zinny, Rivas, Liberatore, and Provenzani Casares demonstrates that the public faith of the notifying officer (Art. 290 CCyC Nación) is not an absolute fiction, but a presumption iuris tantum that can only be destroyed through the suitable procedural paths: the incident of nullity for formal vices of the procedural act, and the rebuttal of fraud for direct attacks on the veracity of the official.

Judges cannot destroy public faith based on reports from the Court Clerk's Office or statements of parties without offering "backing arguments" that materially justify the destruction of legal proof. Doing so implies violating due process, inverting the burden of proof, and dictating arbitrary sentences devoid of reasoning. The legal certainty provided by public faith demands, as a counterpart, that its impeachment be submitted to the strict rules of the contradictory and the evidentiary burden.

• Projection 1: The dogmatic distinction between "faith of perception" (notifying officer) and "faith of relation/collation" (Court Clerk's Office) must be incorporated into the training of judicial operators to avoid the tacit validation of administrative judgments that contradict public instruments.
• Projection 2: The principle of re-channeling impugnative paths (the judge must officiously redirect an erroneously pleaded rebuttal of fraud against a procedural act towards the incident of nullity) must be consolidated as a uniform jurisprudential criterion in the Province of Buenos Aires.
• Projection 3: The dogmatic impossibility of a report from the Court Clerk's Office "acquiring firmness" to destroy notarial public faith must be invoked as an argument of arbitrariness before the Supreme Court of Justice of the Province of Buenos Aires in cases where lower court judges validate such reports without adequate reasoning.

📚 Bibliography and Links of Interest

Current Regulations

• Civil and Commercial Code of the Nation (Law 26,994, Decree 79/2014) — Arts. 163, 289, 290, 291, 296, 332, 1031, 1904.
• Civil and Commercial Procedural Code of the Province of Buenos Aires (Law 15,240) — Arts. 45, 120, 149, 160, 172, 178, 244, 247, 272, 375, 395.
• Penal Code of the Nation — Art. 293 (Ideological falsehood).
• Constitution of the Province of Buenos Aires — Arts. 17, 168.
• Agreement 3397/08 of the Supreme Court of Justice of the Province of Buenos Aires.
• Law 11,723 of Intellectual Property — Arts. 10 and 11 (Right to quote and transformative works).

Doctrine (Base articles analyzed and updated)

• Zinny, Mario Antonio. "Falsedad ideológica" (Ideological falsehood). Revista La Ley, Tomo 2006-C, p. 1032. Buenos Aires: La Ley S.A. (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) (Commentary on the ruling "Caneva c. Rama"). Revista La Ley, Tomo 1993-A, p. 518. Buenos Aires: La Ley S.A. (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) (Commentary on the ruling "Peugeot Citröen c. Jáuregui"). Suplemento Doctrina Judicial Procesal, La Ley, 01/09/2009, p. 74. Buenos Aires: La Ley S.A. (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') (Commentary on the ruling "Ruarte c. Lano"). Abeledo Perrot / APBA, 20/01/2014. Buenos Aires: Abeledo Perrot. (Work cited and analyzed in accordance with the right to quote of Art. 10, Law 11,723).

Complementary Doctrine (Extracted from the analysis of Provenzani Casares's article)

• Calamandrei, Piero. Estudios sobre el proceso civil (Studies on the civil process). Translation by Santiago Sentís Melendo. Buenos Aires: Bibliográfica Argentina, 1961. (Work cited in art. 5 of the base documentation).
• Dworkin, Ronald. Los derechos en serio (Taking rights seriously). Barcelona: Ariel Derecho, 2012. (Work cited in art. 5 of the base documentation).
• Vigo, Rodolfo. "Consideraciones iusfilosóficas sobre el abuso del derecho" (Iusphilosophical considerations on the abuse of law). Revista de Derecho Privado y Comunitario, N° 16. Rubinzal-Culzoni. (Work cited in art. 5 of the base documentation).
• Carnelutti, Francesco. La Prueba Civil (Civil proof). Translation by Niceto Alcalá-Zamora y Castillo. Buenos Aires: Ediciones Arrayú, 1955. (Primary source cited by Zinny).

Links of Interest

• Infoleg - National Legislative Information
• Normas GBA - Provincial Legislation Buenos Aires
• Supreme Court of Justice of the Province of Buenos Aires
• Proyecto WWW (Versión en Español)
• Proyecto WWW (English Version)