One Hundred Years of Solitude: An American Lawyer's Guide to Doing Business in Latin America, 0419 COBJ, Vol. 48, No. 4 Pg. 46
| Author | BY RICHARD JOHNSON |
| Position | Vol. 48, 4 [Page 46] |
One Hundred Years of Solitude
BY RICHARD JOHNSON
This article recounts memorable scenes from One Hundred Years of Solitude as a general. introduction to Latin American law on civil notarios publicos, real estate transactions, and employee benefits, and political history relevant to business dealings in Latin America.
Gabriel
Garcia Marquez's epic novel One Hundred Years of
Solitude is an embellished, magical-realism version of
some of the most important developments in the history of
Latin America.
The novel provides much insight into the practice of law in Latin America, perhaps in part because Garcia Marquez studied law for several semesters at a university in Bogota before dropping out to pursue a career in journalism. His legal background, combined with the Nobel Prize-winning author's deep and unique understanding of universal themes such as greed, corruption, memory loss, inequality, power, and aging,3 resulted in interesting and universal legal insights. But a more important reason why One Hundred Years of Solitude provides so much insight into the practice of law specifically in Latin America is because it provides a complete view of a civilization that closely resembles Latin American societies and the historical, political, economic, and personal forces that shape the law in these societies.4
This article recounts a few memorable scenes from the novel as a general introduction to Latin American law on civil notarios publicos, real estate transactions, and employee benefits, and political history relevant to business dealings in Latin America. The article also discusses aspects of legal practice based on the author's experience with transactions in Mexico, Guatemala, and Panama, and how those transactions differ from their counterparts in the United States.
Notarios Publicos
When the government-appointed Corregidor5first arrived in Macondo, he demanded that all houses be painted blue. In response, Jose Arcadio Buendia, Macondo's patriarch, grabbed the Corregidor by the collar, lifted him off the ground, and told him, "a quino hay nada que corregir"[6]("there is nothing to fix here").7 The Corregidor's role in this book is admittedly different from that of the notario publico, but this analogy isn't much of a stretch; they are similar in the sense that both are products of civil law traditions dating back to Spanish, French, and ultimately Roman regimes, and both exemplify civil law bureaucracy.
When working with notarios publicos in Latin American civil law jurisdictions, U.S. lawyers—who are typically accustomed to freedom of contract and little direct government interference in the execution of day-to-day transactions such as forming legal entities and granting powers of attorney—are likely to commiserate with protagonist Jose Arcadio Buendia and under stand his frustration. Notarios publicos' services are expensive, and parties are required to involve them in a wide range of transactions. The roles of civil law notarios publicos and U.S. notaries public are so drastically different, and the confusion between the two is so common, that several U.S. states, including California,8 Colorado,[9] Florida,10 and Texas,11 have implemented laws prohibiting notaries public from holding themselves out by the Spanish-language tide notarios publicos and potentially confusing Latin American immigrants. The differences between these are discussed below.
Training and Scarcity
The U.S. states place no limit on the number of authorized notaries public.12 In most states, an interested applicant can become a notary public by presenting official identification, attending an online training, and passing a short open-book exam.13 By contrast, a Mexican notario publico must graduate from law school, practice law for at least three years, and be between 25 and 60 years old.14And the number of notarios publicos in many Latin American jurisdictions is strictly limited by law. A search of the website of the organization of not a rios publicos in Mexico City shows only 250 notarios publicos in a city with over 10 million inhabitants.[15] In the province of Panama Oeste, Panama, there is only one notario publico for every 500,000 people, and notarios publicos can only be created by an act of the National Assembly.16 Guatemala falls in the middle of the U.S. and Mexico extremes; in Guatemala, law students automatically become notarios publicos upon graduation.
Transactions Requiring Notario Publico Approval
In Mexico, nearly all significant transactions must be approved by a notario publico, including forming a business entity,17 drafting a will, increasing a company's minimum capital contribution, executing a real estate purchase contract, and executing the minutes of shareholder meetings. To properly deduct business expenses in Guatemala, companies should evidence the expense with a corresponding notarized contract.18
Cost of Services
Notarios publicos perform a quasi-public role, but they operate in private practice. Because of their scarcity and the fact that their participation is legally required in many transactions, their services are both difficult to obtain and expensive. 19Keep in mind that in many jurisdictions, including Panama, an official interpreter must be present to translate the contents of certain documents for any party that does not speak English. These translation services often cost hundreds of dollars per hour, and maximum prices for such services are established by a legislative fee schedule. Notarios publicos' services are likely to continue to be expensive in Mexico for the foreseeable future; relevant case law has established that the Mexican Federal Competition Law does not apply to the services and profession of notarios publicos.20
Scope of Services
In the United States, a notary public's role is typically limited to serving as a neutral witness to the signature of documents, administering oaths and affirmations, certifying copies, and taking sworn statements.21In addition to these responsibilities, transactions overseen by notarios publicos in many Latin American countries are vested with the public faith, which means that their confirmation that a certain event transpired, that documents were signed and contained the proper legal information, or t hat a party was properly represented are all accepted as fact as a matter of law. The only way to challenge such facts is through an allegation of fraud or misrepresentation in the execution of the deed.
Notarios publicos are entrusted with ensuring the legality and proper execution of transactions. Depending on the jurisdiction, they may evaluate and confirm the proper transfer of tide and serve as expert advisors, archivists, tax collectors, and assistants to courts. They owe their ethical duty to the transaction, not the parties, and they are charged with certifying each party's legal capacity. Notarios publicos prepare official documents (act as notariales) to formalize each transaction they oversee, and these documents are presumed to be accurate and in compliance with law; only a court ruling can negate this presumption.[22] When working in Latin America, U.S. lawyers should consider taking advantage of the legal presumptions that attach to notarized acts, even if the presence of the notario publico is not legally required.
Real Estate Transactions
Perhaps in part because of his several semesters of legal studies,23 Garcia Marquez understood and was able to unforgettably relate the many problems that can arise during the different stages of a real estate investment.
Unreliable Property Descriptions
Shortly after founding Macondo, Jose Arcadio Buendia set out to find a land route to the capital city. Frustrated because he kept running into water, he drew the first map of Macondo while "in a rage... exaggerating the difficulties of communication, as if to punish himself for the absolute lack of sense with which he had chosen the place." Because of this hastily and maliciously drawn map, the incorrect idea of a peninsular Macondo endured for many years and caused the inhabitants of Macondo to misunderstand their surroundings.24This story should serve as a first warning for American lawyers of the real property and title-related legal problems they may face while working in Latin American countries, where GPS surveying and mapping systems have not been adopted as quickly as they have in the United States.25
Unreliable Institutional Memory and Record keeping
Lawyers who read this, most of whom studied the frailty and unreliability of human memory in law school evidence class and who may experience it in their everyday practice, can appreciate Garcia Marquez's description of memory loss and its effects on recordkeeping:
[When memory loss set in for Jose Arcadio Buendia] he marked everything with its name: table, chair, clock, door, wall, bed, pan___ Little by little, studying the infinite possibilities of a loss of memory, he realized that the day might come when things would be recognized by their inscriptions but that no one would remember their use. Then he was more explicit. The sign that he hung on the neck of the cow was an exemplary proof of the way in which the inhabitants of Macondo were prepared to fight against loss of memory: This is the cow. She must be milked every morning so that she will produce milk and the milk must be boiled in order to be mixed with...
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