By decree published on August 4th, 2021, in the Official Gazette of Mexico City, several provisions of the Notary Law for Mexico City (“Notary Law”) and the Civil Code for the Federal District –now Mexico City- (“Civil Code”) (hereinafter the “Decree”), where amended and added, as follows:
I. Amendments to the Notary Law for Mexico City
In relation to the Notary Law, the amendments were mainly aimed at digitalizing the activities carried out by Public Notaries, in the following terms:
- Several articles and/or paragraphs were modified, in relation to the use and description of electronic media such as Digital Notarial Performance, Electronic Certificates, Electronic Notarial Signatures, Electronic Signature for Notarial Performances, Computer System, Integral Network of Notaries and Data Messages, among others.
- Public Instruments may be electronic, as long as they comply with the formalities indicated in the Notary Law.
- In order to carry out the services under the digital modality, the Public Notary must comply with the requirements and obligations as provided by the law, being the main obligation to have the Notarial Electronic Signature Certificate, which will be valid for 4 years and renewable.
- The electronic instrument that contains the Notarial Electronic Signature, is deemed to have public faith and its content is presumed to be authentic.
- Likewise, the user of the notarial service must have an Electronic Signature for Notarial Procedure, which will have the same legal value as the autograph signature and, therefore, will allow the provider/user to express their consent regarding the use of electronic instruments.
- In this sense, both, the Notarial Electronic Signature, and the Electronic Signature for Notarial Services, may be used through the Advanced Electronic Signature, or as the case may be, through the Electronic Signature used in Mexico City; all of them shall be granted in accordance with the applicable regulations.
- For the implementation of the aforementioned provisions, an electronic platform called the “Informatic System” must be developed. Such platform will be administered by the Association of Notaries of Mexico City. Additionally, the Association of Notaries must grant the competent authorities access to the Informatic System for the fulfillment of their duties under the Notary Law terms.
- The Informatic System incorporates several authentication features that allow to carry out the Digital Notarial Proceedings, the electronic safekeeping of the protocol and the provision of certification services, guaranteeing at all times the security, validity and efficiency of the operation, storage and administration of the Electronic Archive, the Copy Record Book, and its Appendix, as well as the reception and issuance of communications and documents.
II. Amendments to the Civil Code for the Federal District – now Mexico City-
The amendments to the Civil Code were mainly related to the digitalization of succession matters, obligations, corporations and associations, as follows:
1. Amendments regarding inheritance law.
- With respect to the third book of the Civil Code, regarding inheritance, article 1329 Bis was added to the Civil Code. Such article establishes that a bequest may consist in the ownership of goods and/or digital rights stored in a computer equipment, server, electronic device, social networks, among others, used to access an electronically restricted resource (e.g., e-mail accounts, domains, bank account keys and passwords, etc.).
- The data of electronic bequests, may be safeguarded by the Notary in the appendix corresponding to the will or, in case of digital performance, in a permanent storage system.
- Likewise, the amendments contemplate the figure of a special executor, who will be entitled to receive the information corresponding to the access of goods or digital rights and proceed according to the testator’s indications. It is important to clarify that the special executor will not be the owner of the assets or digital rights, unless expressly stated by the testator.
- In the event that the testator fails to establish the treatment that must be given to the information stored in public and/or private records, the administrator or special executor must request the deletion of the data in order to safeguard the right “to be forgotten” in favor of the author of the succession, unless expressly stated by the latter.
- In addition, the amendment to article 1520 of the Civil Code, regarding wills, now contemplates the possibility of executing an open public will through a digital procedure, also known as the Informatic System
- For such purpose, the Notary shall send the electronic file to the testator so that he/she may read it; circumstance that must be stated in the will. Subsequently, once the testator is satisfied with the content of the will, the testator shall inform it to the Notary and proceed to sign the will, via his/her Advanced Electronic Signature.
- Additionally, articles 1520 Bis and 1520 Ter were added. Such articles establish that an open public will may be executed by electronic means when the testator is in one of the following situations: i) in imminent danger of death; ii) is currently suffering from a serious or contagious disease; iii) has suffered life-threatening injuries; or iv) is in a place that, due to an exceptional situation, cannot be reached in person.
- In order to execute the public will by electronic means in the cases of exception stated above, the Notary and testator must have the possibility of communicating through an electronic device, whereby the Notary may see and hear the testator, as well as speak with him/her directly, simultaneously and in real time during the entire act of the execution of the will.
- A public will may not be granted by electronic means when the testator is: i) mute or deaf-mute; ii) completely deaf and/or iii) blind or unable to read.
- Finally, the Notary must comply with several formalities in order to grant the public will by electronic means, which consist mainly of i) having the presence of two witnesses; ii) obtaining an uninterrupted audio and video recording of the entire act related to the granting of the will; and iii) leaving a record of the will.
2. Amendments regarding obligations’ law.
- On the other hand, articles 1805 and 1811 of the Civil Code were amended, with respect to the moment in which it is understood that the consent, for the effects of the legal act, has been given.
- In this regard, it is contemplated that when an offer is made without setting a term, the author of the offer will be released if the acceptance is not made immediately, even when the offer is made by telephone or through electronic or technological means.
- In addition, the amendment contemplates that the proposal and acceptance made by electronic, optical, and technological means do not require prior stipulation in order to be enforceable.
- Furthermore, article 1834 of the Civil Code, regarding the form of contracts, establishes that in those contracts where a written form is required, in addition to the possibility of signing it with a handwritten signature, it may also be signed through the Advanced Electronic Signature or the Electronic Signature of Mexico City.
- Likewise, in those cases in which the law establishes as a requirement that a legal act must be executed in a public instrument before a Notary, such act may be executed either in an ordinary or digital protocol.
3. Amendments regarding corporations and associations
With respect to the amendments concerning corporations and associations, articles 2675, 2677 and 2713 were amended as follows:
- First, it is established that general meetings may be held by videoconference, as long as the notice of the meeting indicates the electronic means through which the meeting will be held, indicating the electronic address or number of the meeting and, if applicable, the password. It is pertinent to point out that, for such purpose, the session must be recorded, and a copy must be kept, which must be attached to the corresponding minutes.
- By virtue of the foregoing, the minutes may be prepared in writing or through an electronic document, in which case it must be signed by the president and secretary of the Board of Directors, either by handwritten signature or their Advanced Electronic Signature.
- On the other hand, the resolutions adopted outside the meeting may be subscribed in an electronic document, either with the autograph signature or with the Advanced Electronic Signature of all the associates or partners, as the case may be.
- Finally, with respect to general meetings, it provides that the votes of the members present, as well as those attending by videoconference, shall be considered.
- The above stated amendments entered into force the day following the publication of the Decree (i.e. August 5th, 2021). On the other hand, the Digital Agency for Public Innovation was granted a 2-year term to develop the technological adjustments in order to implement the technological tools provided in the Decree. Likewise, the Head of Government was granted a term of 180 business days to harmonize the regulations related to the entry into force of the Decree.
- It is important to note that the Third Transitory Article of the Decree establishes that the amended and added provisions regarding digital notarial acts and correlative concepts such as Digital Protocol, Electronic Instrument, Appendix of the Electronic Instrument, Book of Extracts, Electronic Signature for Digital Notarial Acts and any other similar or related acts, will enter into force 2 years from the date of its publication in the Official Gazette of Mexico City.
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