Mexico City, October, 2021
On August 4, 2021, Mexico City’s Congress published in the Official Gazette of Mexico City (“Gazette”) a decree that supplements and amends various articles of the Civil Code for the Federal District (“Civil Code”) and the Notarial Law of Mexico City (“Notarial Law”).
The amendments to both the Civil Code and the Notarial Law include the urgent need to update such laws to allow the current day-to-day and highly applicable use of electronic media, intensified with the effect of social isolation resulted from the pandemic that we are experiencing.
Inheritance
The first amendment to the Civil Code refers to inheritance and establishes the possibility that a bequest may consist of title to digital rights or goods stored in a certain electronic device used to access electronically restricted resources; This may consist of email accounts, sites, domains, electronic files and bank or brokerage account keys and passwords held by the testator that require a username and password for access.
In this regard, if the testator did not arrange for the treatment of his/her personal information stored in public and private electronic records, the special executor will request public and/or private institutions to delete it in order to safeguard the right to be forgotten.
The amendments also establish the possibility of writing public open wills before notaries public within the scope of their digital activities. I.e. the performance of notarial functions through electronic, optical media or any other technology that enables the signature of the will upon the testator’s agreement using the testator’s Advanced Electronic Signature. The date and time of the will’s execution shall be the same as on the stamp corresponding to the Advanced Electronic Signature.
To complement this, the Civil Code adds that an open public will can be written using electronic media, provided that the testator is able to communicate with the notary through an electronic device, the notary can see and hear the testator and the notary can speak with the testator directly, simultaneously and in real time throughout the writing of the will. For such purpose, the testator must: i) be in imminent danger of death, or ii) be suffering from a serious or contagious disease at such time, or iii) have suffered life-threatening injuries, or iv) be in a place that due to an exceptional situation, cannot be accessed in person.
For this purpose, certain observations are established:
I) The testator’s will must be clearly and verbally stated to the notary public; ii) testators must state that they are physically in Mexico City and free from duress; iii) the will must provide: a) the testator has full legal capacity to write the will and the media used to confirm the testator’s identity; b) the notary ensured that the testator was not under duress by all reasonable means and, c) the circumstances that caused the will to be written in such form, d) the notary must protect in the appendix of the instrument through any unalterable digital media the file that contains the audio and video recording.
Contracts
Another amendment relates to contracts; It mentions that when an offer is made through electronic / optical means or any other technology that showcases the offer and its acceptance, and when there is no deadline for acceptance, the offer will be released if the not accepted immediately.
Similarly, when a contract is required to be in written, all persons to whom such obligation is imposed must sign the related documents either using their Advanced Electronic Signature or the Electronic Signature of Mexico City.
For cases where the law requires a legal transaction to be formalized before a notary public, such formalization may also be made in the notary’s digital official record, in accordance with the provisions of the Notarial Law.
Non-profit organizations and Professional Firms
In addition, the amendments to the Civil Code entail the regulation of Professional Firms and Non-profit Organizations. This acknowledges that the member meetings of firms and organizations may be held by videoconference that allows communication in real time. The notification of the meeting has to indicate the electronic media that will be used and has to state the electronic address or the meeting number and password, as applicable.
The law brings forth the obligation that the meeting must be recorded and kept for the association’s manager or governing body and will be added to the respective minutes. The meeting may be adjourned in writing or in an electronic document signed by the Chairman and the Secretary with their handwritten signature or using the Advanced Electronic Signature.
As recognized in Business Law, the amendment provides that the resolutions adopted in lieu of a meeting will be valid as long as they are adopted by unanimous vote and confirmed in writing in a printed or electronic document with the autograph or advanced electronic signature of all the members.
Supportive of the above mentioned amendments to the Civil Code, the Notarial Law incorporates, as mentioned above, the figure of Digital Notarial Performance and introduces Electronic Certificates, the Electronic Notarial Signature and Electronic Instruments, which are electronically signed deeds and records issued by notaries in the performance of their duties.
The amendments became effective on August 5, 2021, with the exception of Digital Notarial Performance and correlated concepts, which will enter into force two years as of the date of their publication in the Gazette, in order to give notaries public and the Digital Agency for Public Innovation of Mexico City time to carry out the relevant technical adjustments.
We are happy to provide any additional information you may require in connection with the above article.
Jáuregui y del Valle, SC,.
*This article is authored by Carlos C. B. Solano Ortiz & L. Alberto Balderas Fernández and it may reflect their personal opinions independently from the law firm they work for. Shall you intend to apply any of the debated interpretations within the article, we highly recommend to formally consult Jáuregui y Del Valle, S.C. or any other qualified tax and labor advisor.
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