José Luiz Germano[1]
Marcio Martins Bonilha Filho[2]
Thomas Nosch Gonçalves[3]
Preface, it is worth mentioning that the scope of this article is to contribute to the pulsating discussion about extracts and Law 14.382/22, with its main characteristics, in view of its necessary implementation.
In these brief reflections, two recent articles[4] on the subject, written by Ricardo Campos and Fábio Rocha Pinto e Silva, will be refuted, under the methodology of questions and answers, in order to arouse reflection and debate in the legal community.
In this sense, we highlight the following questions extracted from the statements contained in the article by Fábio Rocha Pinto e Silva, to be reflected upon:
- Is the National Council of Justice (CNJ) listening to the voices of delay? Are there a minority of notaries public bothered by technological advances?
- Does the objectification of extracts generate greater security for society and the market? Can artificial intelligence, advocated in the article, replace state intervention? Does pure and simple purchase and sale really exist? Doesn't the simplification of registration, moving away the registry qualification and the inspection by the Judiciary, affront the due legal process?
- Is the US an example of success in the registry field? Is the news registry, advocated by the author Fábio Rocha, more efficient?
- Is the National Council of Justice (CNJ) listening to the voices of delay? Are there a minority of notaries public bothered by technological advances?
This question is perplexing, especially since the CNJ presents itself with a vanguard posture and the concretization of the fundamental rights of those under its jurisdiction.
Objectively, we can highlight as advances of the National Council of Justice, in the field of Civil Registration of Natural Persons, numerous procedures introduced, namely: a) Recognition of Biological Parentage (Prov. CNJ no. 16/2012); b) Late Birth Registration (Prov. CNJ no 28/2013); c) Recognition of Socio-affective Parentage (Prov. CNJ no 63/2017); d) Change of Name and Gender of Transgender Person (Prov. CNJ no 73/2018); e) Change of Patronymic (Prov. CNJ no 82/2019); f) Change of Birth of Child with No Defined Sex (Prov. CNJ no 122/2021), among others.
In the notarial and registry sphere, CNJ's Resolution 35 caused immeasurable progress for the Brazilian State. This movement towards extrajudicialization was the result of the disruptive Law 11.441/07, which enabled the drawing up of inventories, divorces, separations and partitions in notary offices.
According to the statistical survey conducted by the Association of Notaries and Registrars of Brazil (Anoreg/BR)[5], Cartório em Números, since 2007, we can extract that:
"1.8 million inventory acts were performed by the Notary Public Notaries of Brazil in the period from January 2007 to November 2021.
127,022 thousand surpluses were made nationwide between 2007 and November 2021
10.6 billion reais saved, according to the study Justice in Numbers, conducted in 2020, by the National Council of Justice, since each lawsuit that enters the Judiciary costs an average of R$ 2,369.73 for the taxpayer. " (emphasis added).
This means that the Brazilian treasury saved about 10.6 billion reais with the delegation of this service to Notaries Public. In addition, there was an increase in efficiency in the provision of public services, noting that the timeframes for inventories fell from 10 years in some judicial cases to 15 days in one notary's office.
This quantitative and qualitative result can only be attributed to the work of jurists convened by the CNJ, who made this phenomenon of de-judicialization possible with legal certainty, without any prejudice to the citizens.
As a matter of fact, these praises are easily perceived in the votes of the Superior Court of Justice, which admitted a greater extrajudicialization, in the analysis of several judgments that extended the extrajudicial use, as in the cases of opening and execution of wills in notary public offices
It is worth remembering, especially because of the historical context - we have to learn from the successes and mistakes of the past - that in the year Law 11441/07 was promulgated, a Study Group was created by Ordinance GC 01/2007, published in the Official Gazette on 01.11.2007, with the aim of implementing the Law in the notarial field and its implications in the legal system.
This group was composed of the following members: José Roberto Bedran, José Renato Nalini, Marcelo Martins Berthe, Marcio Martins Bonilha Filho, Vicente de Abreu Amadei, Vitore André Zilio Maximiano, Márcia Regina Machado Melaré, and Paulo Tupinambá Vampré.
The aforementioned Group drew important conclusions on the applicability of the law, highlighting the following: i) alternativity, as to the choice of judicial and extrajudicial paths; ii) possibility of giving up one of the paths for the election of the other; iii) dispensability of judicial approval of public deeds of inventory and partition of property, as well as those of divorce and consensual separation, which are valid titles for civil registration and real estate registration.
In addition, specifically regarding consensual divorce or separation, it was recommended that the registries make available a reserved and discreet room or environment to attend to the parties. This is an irradiation of the principle of human dignity, which can only be practiced by a public service delegate, who has proven and continues to prove his obstinacy in achieving justice.
One can notice the CNJ's concern to create an extrajudicial due process of law, according to Flávia Pereira Hill's brilliant article[6].
In this context, we can also highlight Provimento 100, which dealt with the creation of the e-notary during one of the most difficult moments in recent human history, the COVID-19 pandemic.
And here, it is necessary to promote an important central clipping, at the moment of greatest national despair and structural complication of the State, in the face of pandemic scenarios, the CNJ spared no efforts to implement the innovative platform and prevent the Brazilian jurisdiction from being prevented from having access to fundamental rights. All the registry offices worked uninterruptedly, serving the population remotely.
In this scenario, the main epidemiological control mechanism in the history of our country was created - the Transparency Portal. The Civil Registry Transparency Portal, developed by the National Association of Natural Person Registrars (Arpen-Brazil), was nominated for the Innovare Award, in the Justice and Citizenship category - which awards modernization actions in the legal area - for the importance of the service provided especially during the Covid-19 pandemic, with the indispensable contribution of the CNJ.
The system, inaugurated in 2018, provides information and statistical data on births, marriages, and deaths, among other related content. In March 2020, the platform launched a specific module with information on Covid-19 death records, supplied in real time with detailed data on death records resulting from the disease, providing the population with information obtained through the Civil Registry Information Center (CRC).
The scope of the project was expanded over time, first with the launch of a module on Respiratory Diseases, followed by another with Heart Diseases, all reported in the national press[7].
Also, some State Governments have used the reliable data from ARPEN/BR, such as the Government of the State of Pará[8].
It is worth pointing out that all this social efficiency performance COST NOTHING TO THE PUBLIC COFFERS. The investment was the fruit of the extrajudicial system itself, which encompasses all specialties, with money invested by the delegates to fulfill this duty.
By the way, this is not the first time that notaries, with private money, invest in the structure of the notary's office to meet CNJ norms. Regarding this, we remember Provimento 74, which established minimum standards for information technology for security, integrity and availability of data for the continuity of the activity by notary and registry services in Brazil.
In addition to the efforts of the registrars, the notaries, by joining the e-Notary platform, fulfilled their obligation, realizing fundamental rights and supporting thousands of families who suffered various difficulties experienced in the chaotic scenario during this period. And here we completely reject the argument that notaries public are bothered by technological advances, which is demonstrated by the figures below.
According to the CNB-CF[9], in one year, the e-Notary platform has already recorded more than 71 thousand electronic notarial acts, of which 53 thousand deeds and 18 thousand powers of attorney were performed by videoconference. Such acts are expanding rapidly, month after month, and in April 2021 more than 10.8 thousand digital acts were performed by 1.7 thousand notaries, which shows the growing interest of society in the digital environment of the notaries and the proactivity of the notaries.
In addition to deeds and powers of attorney, the e-Notariado brings important numbers in its launched modules. Ceded by the Colégio Notarial do Brasil - São Paulo Section (CNB/SP) and integrated to the platform in November of last year, the Central Notarial Office of Digital Authentication (CENAD), already has more than 411 thousand authenticated pages.
The module has provided at a national level a service of great importance, as it enables original documents to be dematerialized in PDF format, authenticated and secured by the blockchain network of notaries, the NotarchainThe module provided a nationwide service of great importance, as it allows original documents to be dematerialized in PDF format, authenticated and secured by the notaries' blockchain network, the Notarchain, which can be sent by the citizen electronically to any other person or body that, in turn, can materialize this document again in another Notary Public.
Another great mark of the online notary is the more than 61.2 million CPFs sent to the Single Client Registry (CCN) module. This module, integrated to the National Traffic Department's (Denatran) platform for identifying people, has become one of the main and most important databases in the country, which guarantees a complete and secure validation tool for online acts.
By the way, when launched, the module was mentioned by the director of intelligence-financial of COAF, Ana Amélia Olczewski, who spoke about the importance of the tool, in the possibility of "offering valuable contribution to make more efficient the performance of notaries in favor of the system of Prevention of Money Laundering and Terrorism Financing (PLD/FT).
The other module launched in December 2020, aimed at issuing digital certificates of notarial acts, already added up to more than 9,000 applications at the time.
Therefore, objectively, we conclude that at no time the CNJ is late or listening to voices from the past, in view of the facts and statistical data that prove the vanguard position of the CNJ and the extrajudicial in its entirety. We emphasize the strong position of the notaries in search of digital modernization, which is about to complete 10 years of Provimento 22/2013, which regulated the materialization and dematerialization of documents as an activity of the notaries public and registrars of natural persons with notarial attribution in the State of São Paulo, reported by Antonio Carlos Alves Braga Júnior.
2. Does the objectification of extracts generate greater security for society and the market? Can artificial intelligence, defended in some articles, replace state intervention? Does pure and simple purchase and sale really exist? Doesn't the simplification of registration, removing the registry qualification and the inspection by the Judiciary, affront the due legal process?
This unlimited objectification of the process, by means of extracts, generates one of the greatest risks to social regression. It is evident that the market demands greater celerity in negotiations and in the circulation of wealth. However, it is necessary to move forward consciously, without putting at risk all the achievements of this extrajudicial microsystem, which is foreseen in article 236 of the Federal Constitution.
Moreover, this issue should be treated as a possible material unconstitutionality, and in this sense, corroborates some doctrinaire who sustain that this constitutional micro-system would be a stony clause, protected by analogous rights, due to the importance and legal security of these activities, as advocated by José Joaquim Gomes Canotilho.
It would be the hypothesis, to illustrate, of the municipality tutoring the real estate registry or some government department formalizing the will of the parties in a legal deal, where political interests would take precedence over the effective will of the parties.
It would also be possible to add, the creation of extracts without the irradiation and intervention of the State, in the figure of the notary, for example, of tax protection and the manifestation of will. This reckless situation can cause an upset in the development and circulation of wealth in our country.
Similarly, if the problem is agility, we should look for an improvement in the deadlines for preparation of the acts, as was implemented by the celebrated Law 14.382/22, and not necessarily the deconstruction of millenary institutes.
We should not substitute the instruments without the necessary study of the positive and negative impacts, which is even why we imagine that Dr. Fábio Rocha, in another article, published in a renowned collection, proposed the application of this extraction, mentioning the international experience that has been applied to movable assets, as we can extract from the OAS and UNCITRAL model laws. In any case, it does not seem to us the most appropriate, in light of the CNJ's previous deliberations, especially the technical prognosis of the aforementioned Council.
On the other hand, it is worth refuting two dangerous arguments that the renowned author defended: first, the possibility of extratification by means of artificial intelligence, replacing two public service delegates (notary and registrar), who are legal professionals and with their work provide people with greater legal security. This is not a question of clinging to the backwardness!
How can we trust artificial intelligence and this automation, if the creators of artificial intelligence themselves are worried? Elon Musk has signed a letter calling for a "pause" in the development of artificial intelligence. According to the entrepreneur, and a number of authorities and technology companies who signed the document, the new technology poses "profound risks to society and humanity."[10]
As if this attitude alone was not enough, recent articles point out this concern in practice, to the extent that a scam, involving Artificial Intelligence, caused millionaire losses to users. This is the example of Project Harvest Keeper, launched in January of this year, in the midst of these phenomena, defending artificial intelligence as the solution to everything, which curiously caused the application of a millionaire scam.
Harvest Keeper claimed to be an "innovative project" based on Artificial Intelligence that "optimizes the trading process for maximum profit", exactly as the illustrious author Fábio Rocha defends in his article.
However, the project in blockchain, architected on the automation of artificial intelligence, allowed the practice of a nearly US$1 million (about R$5.2 million) scam on its users[11].
In this way, the risk based only on the economic analysis of the law seems crystal clear, in the simplistic idea of replacing it by extracts, without the necessary human intervention, exercised by the legitimately invested holder of the delegation, whose activity guarantees legal security and radiates social peace.
For this very reason, the performance of the delegatees is fundamental to guarantee good technique and above all to ensure responsibility for the acts practiced, even with their personal assets. Besides, these services are also supervised by the Judiciary.
In this sense, Sergio Jacomino[12], real estate registrar, had already warned about the problems of liability, highlighting the triple formation - civil, administrative and criminal - to the extent that it is presumable in this different and strange model of the current one, either by the possible private extracts, either by artificial intelligence, the occurrence of many problems in fixing the responsibility (and individualization of the penalty).
They will introduce new topics under discussion - errors made by the SERP, misuse of purpose by the misuse of personal data, authentication fraud, etc. The author asks objectively, "Who will be held liable?"
Given the above, what about civil liability in case of error of artificial intelligence? As we know, in the case of delegatees, article 22 of Law 8.935/94, and article 38 of Law 9.492/97 establish that the State holds objective liability, without prejudice to the regressive path, according to (STF):
"The State is liable, objectively, for the acts of notaries and registrars that, in the exercise of their functions, cause damage to third parties, based on the duty to return against the responsible party, in cases of intent or fault, under penalty of administrative improbity. The State has DIRECT, PRIMARY AND OBJECTIVE civil liability for damages caused to third parties by notaries and registrars in the exercise of public services delegated to them. STF. Plenary. RE 842846/RJ, Reporting Justice Luiz Fux, judged on February 27, 2019 (general repercussion) (Info 932)".
Still on extracts, Marcelo Augusto Santana de Melo defines the contours of electronic extracts: "a synthesis of a formally constituted title that summarizes its essential characteristics, including the clauses that may generate any possibility of nullity, even if relative, consubstantiating a secondary appearance of a title that may or may not correspond to reality.
On the other hand, it is worth remembering the secular activity of the notary's function, including legal counseling, which has made it possible and continues to make it possible to confer the security of the legal system on people's most cherished business deals.
In fact, the notarial function has the purpose of ensuring legal certainty to private acts, by issuing statements endowed with authenticity. To this end, the notary exercises legal advice to the parties, with impartiality, through the formalization of the wills for the notarial instrument with legal garb.
When discussing the notarial activity, Leonardo Brandelli[13] states that:
"The application of his role in accordance with the dictates of the Law, and the zeal for the autonomy of the will. As to the first aspect, it reveals the notary's duty to perform his function in accordance with the legal system; he must receive the will of the parties and mold it in accordance with the Law, within lawful legal forms. (...) The other aspect contemplates the notary's obligation to watch over the autonomy of the will of those who seek it; he must assure to the parties, as far as possible, a situation of equality, as well as assure the free emission of the will, devoid of any vice, refusing to perform his function in case he finds that such will is tainted by any vice that affects it. "
In fact, the notary's attributions derive from the need to invest a person with the public faith function, "so that the acts practiced by him or with his sanction may have such characteristics as to be fully apt to produce legal effects" [14].
In this way, notarial activity acts as a true method of preventing litigation, both in the aspect of formalizing the will of the parties, and in the perpetuity of evidence, unlike what occurs with extracts, without the minimal intervention of a legal professional capable of balancing legal relations.
In this respect, if the legal transaction is drawn up in the presence of the notary, the entire event will be recorded in the memo book and filed in perpetuity, clothed with the public faith inherent in the important function delegated.
In a classic work, in 1904, Joaquim de Oliveira Machado[15] defines the notarial function:
"It is, therefore, a public employee of a judicial order. He is in charge of hearing and converting into aulhent and solemn instrument, voluntary or necessary, the contracting party's stipulations, the last will of those able to testify.
These are the capital functions.
There are other accessories such as notarization, public forms, optional and mandatory registrations, certificates in theory, protests for commercial letters, extra-judicial possessions.
We add the expressions "necessary or voluntary instrument" to mean that, in addition to the purely optional form, there are other mandatory ones such as in cases of hypothecation or pledge, espousals or sale of real estate, because these conventions without the public instrument are insubsistent as a whole. The notary public sometimes exercises his ministry ex vi of the contracting party's free will or by imperative disposition of the law".
Thus, the complexity of today's society and the mutation of business relationships, with the proliferation of plurilateral businesses and coercive contracts, often with a patent lack of impartiality in business dealings, notaries emerge as true facilitators capable of delivering true legal certainty[16].
In our legal system, there is not a Notary Code. There is Law n. 8935/94 and several sparse provisions in the Civil Code. Article 6 of the aforementioned Law[17] provides about the notaries' competence, establishing a triple responsibility in front of this important public duty.
The first clause establishes the advisory duty, which consists in the didactic explanation of the facts and their legal formalization. This formalization implies transforming the narration of the parties into a business deal, with notarial public faith.
From this process of formatting the will of the parties in the appropriate legal transaction, a series of principles irradiate, particularly that of legality in the previous qualification. Thus, the importance of notaries being legal professionals stands out, because without prior knowledge of private law, there is no way to create a safe and effective notarial act.
In this sense, it is not possible to affirm that there is a "pure and simple purchase and sale", because the quantity of vicissitudes involved, whether subjective - in relation to the parties -, or objective - in relation to the object -, demand an intellectual exercise of the notary's function, while all aspects involving this legal business are analyzed in a personalized way, that is, a legal business will never be exactly the same!
Not to mention the absence of subjective analysis in the fight against money laundering and terrorism, whose verification is imposed on the prudent discretion of the notary public in a scenario where human intelligence has not been replaced (CNJ's Provimento 88).
José Augusto Mouteira Guerreiro[18] defines the notary function as the act of forming a public instrument, or for many the public deed[19], accurately transmitting the will of the parties, so that it legally complies with what is established in the legal system.
The second clause reveals the need for proof of the notary's technical preparation. It is intuitive that the notary is not a mere draftsman of extracts or minutes; he has the power and duty to intervene in acts and business.
This duty is embodied in the advisory principle and, by way of emblematic example, when, in a relationship between divorcing parties, in which we have a disparity of legal counsel, it is evident the need for a substantial balance in the relationship, with the impartial role of the notary being the protagonist, so that there is no legal or economic insecurity for the more vulnerable party, even if they are assisted by their lawyers.
In effect, even if the notary has been summoned by one of the parties, he will not only defend his interests, but will be faithful to the adjusted notarial act, since he acts not only as a trustworthy agent of the parties, but as a legal professional who exercises a relevant state function and a constitutionally qualified profession, hence the unconstitutionality, when we eliminate this state longa manus, with a typical voluntary magistrate outfit.
Celso Fernandes Campilongo, when analyzing the statements contained in PM 1,085/2021, later converted into Law 14,382/2022, concluded that statements can never replace the public deed:
"Therefore, "extracts" can never replace, equate with, or aim for effects analogous to those of deeds. "Extracts" are drawn up in a much less rigorous and much more insecure manner compared to deeds. They sin by their defective form. Its form, inevitably less full, equates the "extract" to a mere private document, devoid of the solemnities required for the transfer of Real Rights and without the typical business structuring, notarial qualification and probatory force of the acts of public faith worthy of notarial and registry performance, in the form of the Brazilian law.
The electronic extract is to the public deed what the preamble is to the Law. They are infungible structures: the extract does not replace the deed; the preamble does not replace the judgment; and the preamble does not replace the Law. You don't execute the judgment's ementa, nor do you execute the Law's preamble, important as they may be. You execute the decision. The Law is applied. In the same way, electronic extracts do not take the place of deeds and contracts, nor can they serve as an empirical and factual basis for notaries and registrars to certify public faith. The "extracts" lack the objective materiality inherent to documents that can be given public faith. "(our emphasis).
Marcelo Augusto Santana de Melo, a real estate registrar, agrees with Celso Fernandes Campilongo[20] in that he reinforces the analogical reasoning of the magistrate's cognition and the registrar's cognition:
"One of the main functions of the registrar is the analysis of the title, also called qualification, which is the judgment of value that the registrar performs on the legality of the documents and on the validity and effectiveness of the legal business contained therein. Note that the registry qualification, in comparison with other registry systems, is equivalent to an anomalous first instance judgment of merit, since it does not generate res judicata.
According to Celso Campilongo, there is a dangerous prognosis, of serious risks to legal security and public interest if an electronic extract is adopted, as it would be a true destruction of the notarial and registry system itself, which has been demonstrating its efficiency for centuries.
In this same sense, Flavio Tartuce and Carlos E. Elias de Oliveira[21], present a perspective of atrophy of the registration qualification, even if it can reduce some exaggerations in the mentioned qualification, the authors believe that it will increase the risks of the entry of improper legal facts in public records.
This is corroborated by Celso Fernandes Campilongo, when discussing the prevention of litigation, and this movement of de-judicialization, which is only possible for notaries and registrars because they perform a broad and exhaustive cognitive activity of the facts when performing their functions. Therefore, they must have extensive knowledge of the specifics - manifestation of will - of the act or legal transaction to be drawn up or registered under their responsibility.
In case this broad cognition is taken away from them, by means of the institution of the electronic extract, notaries and registrars will be unable to grant public faith to the act, exponentially increasing the risk of overloading the Judiciary, of legal insecurity, and of losses to all segments of society and the market.
Finally, aware of the limited space and scope of these reflections, we could not fail to invoke Niklas Luhmann's important contribution, in that trust has no moral value, it is not something good or bad.
This feeling of trust is a mechanism, which needs a structure to reduce social complexity. It represents an antithesis of uncertainty in the face of the future. In other words, a kind of factual prudence, a prognosis, in which one will trust a pre-defined archetype evaluated by the competent authorities, notably the notaries and real estate registry offices.
3. Is the US an example of success in the registry field? Is the news registry, defended by the author Fábio Rocha, more efficient?
This is not a new theme, but it always comes back with a misleading discourse of a faster, more economical, and relatively simple system. This is not true, and there are studies proving that this system of news registration is extremely insecure and dangerous for the economic development of the country.
In a special story by Priscilla Cardoso from Washington (USA), published in Cartórios Magazine[22], January and March 2019, it draws attention by its title:
"TheUnited States made clean: the truth behind the myth. Seen as a model by many Brazilians, the North American notary and registry system suffers from paralysis, promotes real estate bubbles, allows frauds investigated by the FBI and the performance of intermediaries without legal training and supervision by the Judiciary". (emphasis added)
Also, in the same article:
"Real estate bubble and the fragility of the banking record in the United States. Exactly 12 years ago, the world's greatest power destabilized the world economic order by funding weakly controlled mortgage loans by banks. Recession lasted a year and a half, six million Americans lost their homes and another eight million lost their jobs." (emphasis added)
The headlines themselves portray that the reality defended by the author Fábio Rocha is extremely dangerous, especially regarding the need to implement a costly insurance system (inherent in the aforementioned North American system).
In fact, in this chapter, the example of the United States of America serves to illustrate how 'not to proceed'. Truth be told, our technical-legal structure is a source of international pride[23], because our legal system remained intact and was not influenced by the crisis experienced in the North American country.
By the way, it should be emphasized that we are not advocating against the extracts and the legal provision. Strictly speaking, we are defending the continued hygiene and safety of our normative system, updating the procedures, for example, the public deed issued by extract, and never altering the core of the normative system itself.
In other words, the statements will be made by notaries, the public deed layered, maintaining the current system, with all the gains mentioned by the renowned author, thus allowing the Judiciary to inspect all operations, civil liability and other effects inherent in the extrajudicial system, besides the clear and competent legal advice in the formalization and transformation of the user's will in the legality of the act itself, which always results in a preventive de-judicialization.
Thus, we conclude the reflections of the present article:
- Knowing history and not repeating the mistakes of the past is the task of our current generation. We must beware of hasty changes and biased conclusions without proper quantitative and qualitative research.
- We must make the updating of the procedure compatible, the effect of the deed already executed, that is, the possibility of issuing the extract of the deed, with the most important points for a quick and simplified registry qualification. This way, we preserve all the previous human and notarial advisory capacity, taking advantage of what is best in the extracts.
- That is, an extract with public faith and all the effects inherent to notary prophylaxis, tax inspection, inspection by the Judiciary, among so many other effects that deserve an article of its own to explore this notary syndesis of extracts.
- Not everything that is "new" is necessarily good. Examples of this are serious evils related to social networks and cybercrime. Thus, we defend statements with notary public faith, being the rule of the system, and the exceptional permission in the scope of the SFI and SFH. The notaries must elaborate safe procedures for issuing the statements, which naturally derive from the public deed, maintaining hygiene and legal security. The cogitation of the unlimited generalization of the use of the extracts is something that must be avoided because it puts at risk secular foundations of our law, which until today have done our society and the market a lot of good.