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The certification had the signatures of both joint administrators, duly notarized. However, only one of them signed the deed of sale, in which the agreement of the administrative body was elevated to public deed.
Both the General Direction and the Registrar considered that this violated article 1280.5 of the Civil Code, which requires that certain acts, such as the sale and purchase, be recorded in a public document.
The Resolution argues that, unlike a board of directors, the joint administration is not a collegiate body. Therefore, no agreements are recorded in minutes that can be certified.
It also points out that joint administrators do not have their own minute book, as do boards of directors. Therefore, they cannot issue certifications with the same validity.
Based on these premises, the Resolution concludes that any authorization in favor of a single joint administrator must be made by means of a public deed, as required by Article 1280.5 of the Civil Code. This deed must be signed by all the joint administrators, or at least by the minimum number required by the bylaws. Otherwise, the representation is not considered validly accredited.
This position contrasts with a previous Resolution of the General Direction, issued on February 14, 2018. In that case, the Registrar refused to register a deed formalizing general meeting resolutions, certified by both joint administrators but elevated to public by only one of them. The General Direction revoked this decision, arguing that the elevation to public instrument of the resolutions of a company corresponds to the social representation body, which can act directly or by means of a duly authorized representative.
Although these resolutions refer to different types of agreements, the new position of the General Direction seems to indicate a significant change in the faculty of joint administrators to notarize agreements of the company. However, this change has not been based on any clear distinction between the two cases.
As constructive criticism, we can point out that the position of the General Direction is problematic for several reasons. First, Article 1280.5 of the Civil Code refers to voluntary representation, whereas we are dealing with organic representation, which is regulated by specific commercial company laws.
Second, the Mercantile Registry Regulations allow any member of the administrative body to notarize corporate resolutions if he/she is expressly authorized to do so. This does not require the administrative body to be collegiate, as the Resolution argues.
Finally, the Resolution is based on a restrictive interpretation of the notions of minutes and minute books, excluding non-collegiate bodies from the possibility of issuing valid certifications. However, this seems to contradict other provisions of the Commercial Registry Regulations that allow the keeping of minute books for all corporate bodies, not only for the collegiate ones.
In conclusion, the new position of the General Direction may generate unnecessary complications in the mercantile traffic, especially for companies with foreign joint administrators. It would be necessary for the General Direction to clarify this change of criteria in order to avoid confusion and ensure legal certainty in this area.
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