### NOTORIETY OF LAW AND OF FACT (*notorietas iuris et facti*)
In common parlance, *notorio* refers to what is known to the general public, or to the majority of members of a given community. In a legal sense, the concept of *notorio* may appear clear, yet it is difficult to define, so much so that a glossator could assert: *"quotidie de notorio loquimur, sed quid sit notorium ignoramus"* ("we speak daily of notoriety, but we do not know what notoriety is").
#### IN CANON LAW
In the *Codex Iuris Canonici* (*CIC*), *notorio* is a specific aspect of *public*: facts are considered notorious when they occur under circumstances of such incontestable evidence that their existence or nature cannot be doubted in any way. A rule of canon law widely accepted in canon jurisprudence and codified, though not without certain limitations, in *can. 1747 n. 1*, is the maxim *"notorium non eget probatione"* ("notoriety does not require proof"). This means that for notorious facts, no proof is required in judgment, and the judge may avail themselves of private knowledge, thereby making an exception to the procedural principle *"iuxa acta et probata"* ("according to the acts and the proofs").
Canon law also distinguishes between *notorietas iuris* (notoriety of law) and *notorietas facti* (notoriety of fact), defining the term accordingly in Book V of the *CIC*, i.e., in penal law (*can. 2197, nn. 2 and 3*).
For a delinquent act to be considered notorious *notorietate iuris*, it must be established either by a final judgment or by a judicial confession in accordance with *can. 1750*, meaning one made in writing or orally before the judge, either spontaneously or in response to the judge’s inquiries. It should be noted that if, instead of becoming final, a judgment is subject to *restitutio in integrum*, the effects of *notorietas iuris* cease. The *CIC* further requires that the judgment be issued by a competent judge. Relative incompetence, if not raised, is cured; if the incompetence is absolute, the judgment is null and void, and thus *notorietas iuris* does not apply. Such facts do not require proof; however, if the notoriety derives from a judicial confession, the judge may, when it comes to protecting a public good, refrain from releasing the party from the burden of proof. Against *notorietas iuris*, some (e.g., Creusen) admit that solid proof to the contrary may be offered, thereby contending that the force of *notorietas iuris* is inherently weaker than that of *notorietas facti*.
A delinquent act is said to be notorious *notorietate facti* when it is publicly known and carried out under such circumstances—for example, in a public place, before multiple witnesses who can attest to it, before a public official, or when it is recorded in a public register or document that cannot be concealed or excused by any legal resolution. For a delinquent act to qualify as *notorietas facti*, the imputability must also be notorious, as this is an essential element of the delict itself. For instance, a homicide may be notorious as a fact but not as a delict if it is doubted whether it was committed in legitimate self-defense.
Scholars debate whether the same notion of notoriety, as examined above, can be applied outside penal law, specifically in relation to matrimonial impediments. The majority of authors reject this application. A matrimonial impediment, according to the *CIC*, is defined as *public* when its existence, or at least that of the fact from which the impediment arises (Interpretation Commission, June 25, 1932: *AAS*, 24 [1932], p. 284), can be proven in an external forum; it is *occult* if it cannot be proven (*can. 1037*), regardless of the nature of the fact from which the impediment originates or the public’s knowledge of II.
Thus, the dual classification of *public* and *occult* does not carry the same discriminatory weight as it does in the classification of delicts. The *CIC* follows a different criterion for impediments. It is therefore possible for a fact to be *occult* as a delict but *public* as an impediment.
This controversy has important implications regarding the simple convalidation (*v.*) of marriage, matters of matrimonial publications, dispensations from matrimonial impediments, and the right of the promoter of justice to act in cases of matrimonial nullity.
#### IN ITALIAN LAW
In the Italian legal system, there are no institutions exactly corresponding to the *notorietas iuris et facti* of canon law. However, in line with canon law—albeit in a less prominent or less sharply defined manner than in the *CIC* (*can. 2197, nn. 2 and 3*)—there exists a norm, namely *Article 115, paragraph 2* of the Code of Civil Procedure.
This article, echoing the principle affirmed in canon law—*"notoria non egnet pro batione"* (*can. 1747*)—stipulates that a judge, without the need for proof, may base a decision on facts of common knowledge. Thus, the judge may directly take into account those facts that a person of average culture in a given time and place would know.
A certain analogy with *notorietas facti* of the *CIC* can be found in *Article 1168* of the Civil Code, concerning the action for restitution of possession. The fourth paragraph of this article establishes that restitution must be ordered by the judge based simply on the notoriety of the fact, understood not in the sense given by *paragraph 2 of Article 115* of the Code of Civil Procedure, but as a form of proof sufficiently convincing—though not exhaustive—to persuade the judge of the dispossession and to order restitution.
Distinct from what has been discussed is the *atto notorio* or *atto di notorietà* (deed of notoriety), which consists of a declaration made before a public official, authorized to receive it, by a certain number of persons regarding the notoriety of a specific fact and their personal knowledge of II.
The *atto di notorietà*, of French customary origin, is not a general means of proof in the Italian legal system. Indeed, it has no value outside the cases expressly provided by law, as the declarations contained therein are collected without the adversarial participation of the parties and without the procedural safeguards. When admitted, its probative value does not exceed that of a *praesumptio hominis* (presumption of fact), allowing for contrary proof.
Most often, declarations of notoriety are received by public officials to provide proof of the truth of a fact to the public administration.
BIBL.: L. Ferraris, *Prompta bibliotheca*, V, Bologna 1766, p. 391; P. Gasparri, *Tractatus canonicus de Matrimonio*, I, Rome 1932, pp. 126-29; G. Chiovenda, *Istituzioni di diritto processuale civile*, II, Naples 1934, p. 408, n. 324; S. Sipos, *Enchiridion iuris canonici*, Pécs 1940, pp. 524, 938; M. T. Zanzucchi, *Il nuovo diritto processuale civile*, I, Milan 1943, p. 368; F. Roberti, *De delictis et poenis*, I, part 3, Rome 1944, pp. 62-64; F. Cappello, *De Matrimonio*, Rome 1947, n. 878. Francesco Ercolani.