Contract of sale of real estate. Absence of seller's signature. Application of the index fingerprint. Nullity of the notarised sales contract

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

As it appears from the authentication, the sale-purchase contract was concluded at the home of the seller, a sick, elderly, non-ambulatory woman, who, after reading and translating the deed into Hungarian (a language which she declared she understood better than Romanian), by the certified translator F.A.G., known to the notary public, consented to the authentication of the contract and affixed the print of her index finger of her left hand on all copies of the contract.

According to the provisions of Article 97 of Law no. 36/1995, "(1) In the case of those who, due to infirmity, illness or any other cause, are unable to sign, the notary public, when executing the deed, shall take the consent only in the presence of 2 witnesses-assistants, this formality replacing the absence of the party's signature. (2) The witnesses-assistants shall be identified and shall sign the document, and the authentication shall mention in the conclusion that they were present at the reading of the document by the parties or, as the case may be, by the notary public and at the taking of the consent".

In the absence of the two witnesses, there can be no certainty that the party who, due to infirmity, illness or any other cause, is unable to sign, has given his consent, and the absence of this formality is tantamount to the absence of signature, meaning that the court will find the nullity of the sale-purchase contract concluded on 30 April 2013 authenticated under no. 1272/30.04.2013 by the S.C.N. „N. L.” through notary C. L. I., having as object the land and building located in mun. Cluj-Napoca and order the rectification of the Land Register by cancelling the registration of the property right acquired by way of purchase on the basis of notarial deed no. 1272/30.04.2013 registered in favour of the defendant.