Civil liability of notaries analysis of Topics 777 and 940, judged by the Superior Court of Justice

Abstract

This article aims to study the civil liability of notaries, a subject of numerous and distinct legal interpretative solutions, which was settled with the establishment of a qualified precedent related to Topic 777, ruled by the Brazilian Supreme Federal Court (STF) in March 2019. The proposal is to reflect on subjective civil liability as a corollary of the constitutional rule that establishes the objective and direct liability of the State, attributing derivative responsibility to its agents. To this end, the historical background of the civil liability of notaries will initially be presented. Then, the public legal nature of notarial services will be addressed, along with the notary's status as a public agent, the extra-contractual liability of the State for damages caused by its agents to third parties, and the subjective liability of the notary as a corollary of the State's objective liability. The article will also explore the conception of the applicability of Topic 940, judged by the STF in August 2019, to notaries, which leads to the recognition of the lack of standing of these public agents in lawsuits seeking compensation for damages arising from the exercise of notarial activities. This is because, as public agents, they are subject to the application of the second part of Article 37, §6 of the Federal Constitution. Finally, the article will discuss the implications of the notary's subjective liability for damages resulting from fraud perpetrated by third parties, concerning both notarial acts performed in physical procedures and those carried out electronically, as per Provisions No. 100/2020 of the National Justice Council.