A public attester, or fedatario público, is an individual that has been granted authority by the federal or state government to authenticate documents or acknowledge facts as true.
The law recognizes different types of public attesters. For example, Mexican judges are assisted by public attesters known as actuarios, which are judicial clerks with a law degree that carry out different activities on behalf of the judge (e.g., serve complaints or notifications; attach property) and acknowledge or testify that such activities were performed. Because these judicial clerks are recognized and authorized by the judicial system to act as public attesters, the acts that they certify will be deemed true, unless beat by a judicial challenge (difficult).
In this post we will address two types of public attesters that are required for day-to-day business in Mexico: notary publics (notario público) and public brokers (corredor público).
What is a notary public?
A notary public in Mexico, and other civil law jurisdictions, is a licensed attorney authorized by a state’s government to act as a public attester. A notary public authenticates documents, facts and, in most cases, validates that the content of the documents that they attest are according to the law.
The main purpose of a notary public is to supervise that the acts that they attest are legal and to prevent fraud.
Since notaries are licensed attorneys they may also provide legal advice to their clients. They may not, however, engage in litigation.
Notaries public are licensed at the state level and under state law. As such, their practice may vary amongst the Mexican states.
Examples when a notary is needed.
A notary public is a civil law and commercial law expert. Their typical functions entail civil law acts, such as purchase and sale of real estate, leases, powers of attorney, attestation of wills, forming civil entities such as partnerships (Sociedad Civil) and non-profit organizations (Asociación Civil), among other civil law acts. Notaries public are also commonly used to form business associations (Sociedad Anónima, Sociedad de Responsabilidad Limitada, etc.), and agrarian law entities (e.g., Sociedad de Producción Rural) although these may also be formed by a public broker, as we will discuss below.
What is a public broker?
A public broker is also a licensed attorney that has been granted an authorization by the federal government to act as a public attester for commercial matters. It is different from the notary public in that it is regulated by federal law, meaning that their practice will not vary amongst the states (although their attestation capacities will be limited to the state wherein they are authorized to practice), and that their practice area is commercial law.
Because public brokers are licensed attorneys, they will also be able to render legal advise to clients. They are also capable of forming business associations or agrarian law entities and formalizing powers of attorney in limited circumstances (e.g., when the power of attorney is granted to an individual in her capacity as an officer of a business association (representación orgánica)). Activities that set them apart from the notary public are doing appraisals of tangible and intangible property, and acting as an arbitrator or mediator in business disputes.
Difference between a notary public and public broker.
So far we have seen that they are both lawyers and public attesters. A notary is licensed by the state government while the public broker is licensed by the federal government.
Their main difference is that a notary public, or notario público, is an expert in civil law matters and a public broker, or corredor público, is an expert in commercial law matters. What does this actually mean? It means they will do different things while some of their functions overlap. We may easily set them apart by looking into what each one of them does, as pointed in the following illustration.
How do I know whether to use a notario público or a corredor público?
Although a notary public will be able to do many of the undertakings a public broker does, one should look into the specialty of the public attester, just as you would when hiring a lawyer. Both the notary and the broker can do trusts but you will be better off with the one that has more experience in trusts.
In practice, a person would normally hire an attorney and then the attorney will chose who to work with, depending on the matter, or else advice whether a public attester is needed in the first place, since not all transactions need to be supervised or authenticated by a public attester.
Because this topic could be very broad, feel free to post your comments or send us an email if you need further information.