We often hear of simple and authenticated private writing. Let’s see together what it is, how authentication works and its legal value.
Definition of private writing
The private agreement is a document drawn up in writing by one or more subjects who, upon signing, formally become the authors. The parties can settle, for example, a deed of sale between private individuals (e.g. contract) or a unilateral declaration (e.g. recognition of debt). In fact, private writing can take the form of a unilateral act or a contract, depending on the case.
It can be drawn up by any means: manual, mechanical or telematics, and it is essential that it be signed. The signature, in fact, proves the existence of the agreement in the case of a contract or the will of the individual in the case of a unilateral declaration. However, the signature guarantees only the origin of the declarations and not, instead, its content.
Regarding its probative value, this changes if the deed is signed in the presence or absence of a notary or other public official. Therefore, there are 2 types of private writing: authenticated and simple.
Authenticated private writing
An authenticated private agreement is a document that the parties sign in the presence of a notary or other public official. The latter verifies the identities of the subjects who sign it and the date of drafting. In addition to the notary, it can also be authenticated by public officials, such as consuls, secretaries of municipal and provincial institutions, etc.
With the authentication, therefore, it is certified that the writing actually took place by the will of the parties and on a certain date. The document signed by the parties thus acquires the value of full proof and can be used both towards the participants and towards third parties. However, even if the signatures are authenticated, it is possible that the person against whom it was produced disputes its authenticity in court through the forgery complaint which we will discuss later.
Simple private writing
The simple private agreement, on the other hand, is signed by the parties in the absence of a notary or other public official who can guarantee the veracity of the signatures or the date of drafting. In fact, if you want to give a certain date to the document, it is necessary to register it with the Revenue Agency.
To be valid, it is sufficient for the parties to sign it. The signature must be handwritten, i.e. issued in their own hand by the interested parties and affixed at the bottom of the document. For multi-page private writings, it is also possible to sign only the last of the sheets. However, it is always recommended to initial each page.
On the other hand, to obtain full effectiveness of legal proof it is necessary that the simple private deed be recognized in court. The recognition takes place during the first hearing of the trial, for example, when the party against whom it is produced does not appear in court or if it appears and does not contest it.
When it cannot be used
The private deed, in most cases, acquires legal value with the affixing of signatures, thus becoming binding for the parties who sign it. However, there are some cases in which the private agreement (signed) is not sufficient to give legal value to the agreement, for example, when the law provides for a particular form of the document (e.g. by public deed). This is the case with the purchase of a house or a donation which, by law, must be regulated in the form of a public deed before a notary.
On the other hand, to regulate the future sale of a property, the law does not provide for any requirement of form and a private agreement is sufficient as a preliminary agreement for the real estate sale.
Remedies: denial and complaint of forgery
There are 2 different remedies to contest the veracity of the signatures: denial and the complaint of forgery.
As we have seen, any party against which a private deed is produced can disavow it, denying the authenticity of the document. The disavowal, therefore, is that act with which a subject, in court, formally denies his writing or his signature.
The person who produced the private agreement, if he intends to make use of it anyway, must request a request for verification and then produce evidence that can prove the authenticity of the signature. For example, bringing to court other documents signed by the party proving the similarity of the handwriting and signature.
The complaint of forgery, on the other hand, is the only remedy that can be exercised to contest the authenticity of an authenticated private agreement. Unlike denial, in this case, the veracity of a document signed before a notary is contested. Therefore, the burden of having to prove the counterfeiting of the signatures falls on the person contesting the private agreement.
It should be remembered that, to contest the veracity of the content of the writing and not the authenticity of the signatures, it will not be possible to use either of the two remedies seen above. One can only use other tools to detect the material falsity of documents.
Model and facsimile of private writing
On LexDo.it, you can create personalized private writing in a few minutes, answering a few simple questions.
You can choose from our library of templates and facsimiles that you find here:
- Payment Reminder Letter: to formally request the extinction of a debt
- Letter of Intent (Memorandum of Understanding): to define the current status of negotiation and regulate its continuation
- Confidentiality Agreement: to share confidential data that must not be disclosed outside
- Loan Agreement: to settle credits with individuals, family members or companies
- Reminder for payment or formal notice: to request a debtor to pay the amount due
- Distrust to Fulfill: to distrust a person who is late in the execution of an obligation
- Free Loan Agreement: to grant the property free of charge with the obligation to return it
- Rental Agreement (Leasing of Movable Assets): to rent a movable property and any ancillary services