"Real Documents"
Most legal documents are evidence of something that happened, making a copy as effective as the original.
A few kinds of legal documents are what I call "real documents" which means that the legal document is the embodiment of the obligation rather than merely being evidence of it, most notably: currency, promissory notes, negotiable bonds, checks, certain kinds of warehouse receipts, certain kinds of stock certificates, and wills.
The last holdouts, with the exception of currency, are probably a relic that should be dispensed with. In the case of currency, promissory notes, negotiable bonds, checks, warehouse receipts and stock certificates, the notion was that it was easier to transfer these legal rights by physically transferring a piece of paper than by preparing a legal document of transfer evidencing the assignment. Except in the case of currency, that is no longer the case as a matter of technology and business practice, so this special status could be dispensed with.
In the case of a will, the main reason for these to remain "real documents" is so that the physical destruction of the document revokes the will. This too is really unnecessary and the necessity to locate an original will thwarts the testator's intent far more often that the ability to revoke a will by destroying the document supports the testator's intent.
Notarization
Notarizations are used mostly to authenticate recorded documents that are related to, or could be related to, real property, to authenticate documents taking effect upon death or that could authorize a death (such as a living will or health care power of attorney), or to authenticate court documents.
In the case of court documents, at least, a declaration under penalty of perjury which is not notarized, which is the norm in the federal courts and in the courts of some reformist states like Utah, has largely replaced the affidavit for this purpose, and rightfully so, eliminating an unnecessary formality.
When identity is really important, for example, for a beneficiary to claim a valuable life insurance policy benefit, a parallel system of quasi-notarization called guaranteed signatures, administered by financial companies that holds the signature guarantor liable if the signature is false, has replaced notarization.
The use of notarization as a means of securing truth as opposed to confirming identity, serves no purpose that a declaration under penalty of perjury does not, and the involvement of attorneys and court officials in litigation makes the identity confirmation requirement unnecessary in most litigation contexts.
Also, notarization is actually just an evidentiary bonus and not an actual requirement, already, for wills and many other estate planning documents under states with more modern probate laws.
Limiting notarization to being a means of authenticating real estate documents (and even there, again, this is basically an optional evidentiary plus, although bureaucracies sometimes enforce it), would be a good thing. Impersonation is a quite rare form of fraud and in those cases, overcoming notarization requirements is often possible anyway. The harm caused by ignoring "false negatives" of signed but not notarized documents outweighs the harm caused by honoring "false positives" of forged signatures.
Statute of Frauds
Most statutes of frauds do more to encourage fraud than to prevent it. At a minimum, any recorded conversation should overcome the statute of frauds. The exclusion of this provision promotes immense amounts of fraudulent conduct by financial institutions in Colorado under the "Credit Agreement Statute of Frauds" which is particularly pernicious in the context of loan modification discussions. Limiting an institution's liability to signed written statements when it conducts almost all of its business by telephone is inherently problematic.
One interesting example is that Colorado has adopted a rule that a non-statutory requirement in a contract that modification be in writing is void as a matter of public policy and that such contracts can actually be modified orally unless the modification would be subject to a statutory statute of frauds.
In corporate law, securities transactions involving vast sums of money are routinely conducted orally, and corporate decision making is also routinely done orally with a secretary recording it. So is a huge amount of court and legislative business. Many credit card transactions are likewise done without signatures without ill effect. The importance of an agreement or decision is not a reason to require it to be made in a signed writing.
Probably the only statute of frauds that makes any sense is almost definitional, which is the one that says that a signature on a deed is what causes real property to be transferred.
Parole Evidence Rule
The parole evidence rule which exclude extrinsic evidence about a document generated prior to or contemporaneous with its execution seems procedural desirable, in theory, because it eliminates or greatly narrows the need for testimony in document intensive contract cases, greatly reducing litigation costs for discovery and making these cases easier to win in motions for summary judgment.
But, the experience of Israel, which abolished the parole evidence rule, has shown that it can be abolished with no real difficult or side effects. And, it has so many "outs" that it is rarely actually effective at its purpose of dramatically narrowing the scope of relevant evidence when the matters that could be shown with extrinsic evidence would be relevant but for the rule.
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