The Overlapping Enforcement Instruments
Debtor D owes Creditor C1 12,000,000 AMD under a loan certified by a notarial enforcement inscription (execution clause), and separately owes C2 8,000,000 AMD under a settlement certified as a notarial settlement agreement with enforcement force. D's only asset is a car valued at 15,000,000 AMD. C1 presents the inscription to the enforcement service first; C2 presents its instrument three weeks later. D claims the settlement was signed under pressure and asks the notary who certified it to 'cancel' the enforcement force. D also asks the notary to certify a new agreement extending payment to 24 months, which C2 refuses to sign.
1. Can the notary who certified the settlement remove its enforcement force at D's request?
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No. Once an instrument is invested with enforcement force, the notary cannot unilaterally revoke it on a party's assertion of pressure. The proper route is a challenge before the competent court within the statutory period, or a separate claim to invalidate the underlying agreement. The notary may issue copies and confirm the fact of certification but must direct D to the court. The notary should document the request and the refusal.
2. How should the competing claims of C1 and C2 be analyzed against the 15,000,000 AMD car?
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Both instruments are enforceable, and priority among them is determined by the rules governing enforcement proceedings, generally by the order in which enforcement is initiated and the asset is attached, not by the notary's preference. C1's earlier presentation gives it priority over the attached proceeds; C2's later instrument ranks behind. Because the car (15,000,000) exceeds C1's claim (12,000,000), the surplus after C1 is satisfied may be applied to C2, subject to the enforcement officer's distribution rules and any protected minimum for the debtor. The notary's role is limited to the validity and scope of the instruments, not to distributing proceeds.
3. What should the notary do with D's request to certify a 24-month extension that C2 will not sign?
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A notarial act requires the consent of all parties whose rights it affects. Without C2's signature the notary cannot certify an agreement that purports to bind C2 or to modify C2's enforceable instrument. The notary may certify a unilateral acknowledgment of debt or a new agreement between D and C1 only, clearly stating that it does not affect C2's rights, and must warn D that a unilateral document does not suspend the existing enforcement. Certifying a document implying C2's consent would be a false act.