The environment created by the risks of contagion from the new coronavirus (covid-19) has led to the need for rapid adaptation of electronic notarial act systems in order to avoid, as much as possible, performing acts in person. In this context, the National Council of Justice (CNJ) issued Ordinance No. 100/2020, on May 26, to govern} the performance of electronic notarial acts in Brazilian territory.
Only part of the states have organized themselves to draw up deeds and perform notarial acts in a virtual environment following standard established by their judicial review boards. The standards they set, however, even differ. With the promulgation of the new ordinance, the CNJ systematized the procedures to be adopted at the national level, unifying the few existing ones through the revocation of all the standards promulgated by the states' judicial review boards to regulate the issue.
Electronic notarial acts in any state will be performed exclusively by the e-Notariado platform, which will be available 24 hours per day. It is expected to be implemented, in those cases where a technical schedule is needed, within a maximum time period of six months.
In order to perform electronic notarial acts, the notarial service must be registered in the e-Notariado platform. The signatory parties must, in turn, be in possession of the digital certificate, which will be issued free of charge at the notary offices registered.
The interested party must appear in person at the notary's office registered to request the issuance of the digital certificate, which will be used for a determined time and exclusively. There are studies being done, however, to make the certificate available remotely, thus avoiding physical travel by the interested party.
Ordinance No. 100/2020 established the following criteria for the performance of electronic notarial acts:
- Videoconference is essential and must contain, at least, identification of the parties, demonstration of their capacity and free manifestation of will to perform the act, consent of the parties to the public deed, description of the subject matter and the amount agreed upon, declaration of the date and time of the act, and an indication of the book, page, and notary office where the act will be drawn up.
- The notary will be responsible for drawing up the notices of the location of the property or the domicile of the competent purchaser. If the property and the buyer are in the same state, the buyer may choose any notary service in the state to carry out the act.
- All signatures will be exclusively via electronic certification provided by the notary service. Even the notary's signature must be via ICP-Brasil digital certificate.
The ordinance also provides for possible performance of hybrid notarial acts when one of the parties does not opt to use the electronic platform. In such cases, the notary will perform the procedure provided for electronic acts with one party and the traditional procedure with the other. Subsequently, the signed document will be submitted to the dematerialization process, that is, it will be converted into digital format without loss of its validity, effectiveness, and effects.
The parties are not exempted from submitting the documents customary for the act intended. At the end of the process, they may request transfer of the act performed, which will contain the information that it was performed electronically.
Ordinance No. 100/2020 represents continuity of the CNJ's work to digitize extrajudicial services, given the gradual transition of commercial relations into the virtual environment.
The immediate expectation is that the flow of electronic notarial acts in Brazilian territory will intensify. It is believed that the practice will survive the current scenario of social isolation and will be adopted regularly.