A public-form notarial act is a document drafted by a notary that contains the entire notarial act. It is narrated from the notary’s perspective and includes all the details and circumstances of the act. All Spanish notarial acts are in public form (documents elevados a público).
In England and Wales, notarial acts are usually in private form. Private form involves the notary affixing a document they draft to another document. The notary keeps a record of the details and circumstances of the act. However, the notary may not include these facts in the private-form document (Notaries Practice Rule 23).
Although English notaries don’t usually issue documents in public form, they can do so, both for use domestically and abroad:
A notary […] may issue notarial acts in the public or private forms intended for use in England and Wales and in any other jurisdiction. (Notaries Practice Rule 3.2)
In practice, a civil law notary or lawyer requesting a public-form document from an English notary may tell them how to set the document out for the jurisdiction in question. They may, for instance, send them a template to complete.
Should you use “public” or “public form” in translations?
So in “public form” we have an authentic term used by English notaries equivalent to elevado a público. Should we use it in translation? Probably not. We probably shouldn’t even use the term “public” when talking about notarial acts.
Obscure outside of notary circles
First, aside from notaries, virtually no one knows what “public form” means.
Second, people may mistake “public form” and “public” to mean that a document is public knowledge or on the public record somehow, which is not what “public” means here. Even though the facts in notarial acts often get entered into public registers.
Third, in most run-of-the-mill translations of legal and notarial documents, signposting that a Spanish notarial act is in public form is redundant. All Spanish notarial acts are in public form (although not all documents issued by a Spanish notary are). There is no need to state this. It doesn’t matter if the reader doesn’t know this or even what “public form” is. Most of the time, readers of translations just need to know that a document must be or was executed before or issued by a Spanish notary. This will usually be clear from the context — most legal and notarial documents mention the name and district of the notary issuing the document referred to.
Adds nothing if not explained
“In public form” and “public” will sometimes be useful for readers, like in academic writing or books or webpages on Spain. But, as hardly anyone knows what the terms mean, we should describe or define these terms if we use them. In informational or academic contexts, you usually have margin to do this.
However, outside these contexts and without an explanation, these terms usually only add the potential for confusion to your translation.
In an upcoming post, I’m going to look at how to translate the names of the main types of Spanish public-form notarial acts. This post will build on and update what I wrote here.
Public document does not equal public form
Lastly, I want to clear up a potential source of confusion, especially when translating from Spanish.
A public document is any kind of document issued by a public authority. It has nothing to do with whether the document is in public form. All notarial documents, in both public and private forms, are public documents, as are many non-notarial documents.
However, in Spanish notarial and legal contexts, documentos públicos y privados distinguishes between notarial and non-notarial documents (documents not executed before a notary). It is not a distinction between public- and private-form documents. As Spanish notarial acts are always in public form, there is no need to make this distinction in Spanish.
So “public and private documents” is not a good translation of documentos públicos y privados. Good options include “notarially-recorded and non-notarially-recorded document” (West) and “notarial (acts) and other documents”.
See this page.