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Civil law notary
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Civil-law notaries (or latin notaries) are specialized lawyers acting as public officers with jurisdiction over voluntary, i.e., non-contentious, private law. Unlike a notary public, their common-law counterparts, they are able to provide legal advice and prepare instruments with legal effect.
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Encyclopedia
Civil-law notaries (or latin notaries) are specialized lawyers acting as public officers with jurisdiction over voluntary, i.e., non-contentious, private law. Unlike a notary public, their common-law counterparts, they are able to provide legal advice and prepare instruments with legal effect. They often receive the same education as advocates, trial lawyers, or any professional litigator such as barristers or attorneys in common-law countries, avocats in French-speaking countries, and so forth.
Civil-law notaries are limited to areas of private law, that is, the area of law solving disputes between private parties and requiring minimal or no government intervention. The most common areas of practice for civil-law notaries are in property conveyancing and registration, drafting contracts, business transactions, successions, and other estate related matters. Ordinarily, they have no authority to appear in court on their client's behalf; their role is limited to drafting, authenticating, and registering certain types of transactional documents. In some countries, such as the Netherlands, France or Italy, they also retain and keep property records - in minute form - in notarial protocols, or archives.
Notarial Acts at Civil Law
As a lawyer, a civil-law notary prepares legal instruments called notarial acts. These acts are public instruments, i.e., recorded with and authenticated by a public office or employee, and are said to be in solemn form, meaning written with notarial wording according to strict prescribed formalities of language and often pro-forma precedents. A notarial act is self-authenticating and endowed with executory force, direct evidentiary status, and probative value at civil law. This value amounts to the fact that when a notary-at-civil-law drafts or signs his name to a document, the result in virtually all civil-law jurisdictions is a nearly conclusive presumption that the document is a true record of the facts asserted or recorded within. A contesting party bears the burden of bringing a collateral attack against the authenticity of the act, and must prove the the instrument's invalidity by clear and convincing evidence. This comes from the fact that the notary is expected to verify the facts, assertions, or events mentioned in his act, thereby assuming responsibility for its contents, giving warrant to its authenticity, and entitling it to full faith and credit in and out of Court. To ensure this, a notarial act is in authentic form when it is signed by the parties to the act, witnesses, and the attesting notary.
Distinction from Notaries Public
Save for Louisiana, Puerto Rico, and Quebec, a civil-law notary should not be confused with a notary public in the United States and Canada, who has none of the legal powers notaries enjoy at civil law. Rather, notaries public only have the power to administer oaths, take declarations or depositions from witnesses, acknowledge signatures, and certify copies, usually in conjunction with some legal process. In Louisiana, Puerto Rico, and Quebec, private law is traditionally based on the French and Spanish civil codes, giving notaries public greater powers, including the right to prepare wills, conveyances and generally all contracts and instruments in writing. For this reason, immigrants from civil-law countries where civil-law notaries exist, particularly those from Spanish-speaking nations, are often confused by the office of notary public and have been defrauded by dishonest notaries misrepresenting themselves as having legal powers. Thus, in some states there have been ongoing efforts to prohibit notaries public from listing themselves as Notario Público. Such a law has existed for more than fifteen years in California. Similar laws now exist in Texas, Illinois, Tennessee, Georgia, and Florida.
Florida and Alabama have recently enacted statutes allowing for the appointment of Florida or Alabama attorneys as civil-law notaries with the power to authenticate documents and transactions. See Fla. Stat. § 118.10, and Ala. Code § 36-20-50. This is not the same as a notary public appointment. The new legislation is an attempt to encourage business transactions with foreign parties used to dealing with civil-law notaries.
Netherlands
Dutch notaries are part of the Royal Dutch Notarial Society (KNB) and occupy a special place in the world of legal professionals in the Netherlands, alongside attorneys-at-law, bailiffs and tax advisors. This is apparent first and foremost from the way in which a notary is appointed and performs his or her duties. Like an attorney, a notary is a legal professional with clients who pay for her or his advice and services, but like a judge, a notary is appointed by the Crown for life. The permanence of the appointment is designed to safeguard the independence which a notary needs to perform his or her duties.
This brings us to a second important feature: a notary’s independence and, more importantly, her or his impartiality. Unlike an attorney-at-law or other legal advisor, a notary does not act for just one party. Instead, in the Dutch legal system, he or she is required to weigh up and balance the interests of all the parties to a legal transaction. A notary is, as it were, above the parties. For example, when real property is conveyed a notary acts for both the seller and the buyer. She or he has a duty of secrecy in relation to his or her clients and has the right to withhold information in court, in the same way as an attorney-at-law or a doctor. In cases where a notary nonetheless acts as legal advisor to a particular party to a transaction, he or she should make this sufficiently clear to all concerned. Here too, however, the notary should not neglect the interests of third parties.
All notaries are law graduates. Not only are they experts in family law, succession law, corporate law and property law, but they must also stay abreast of certain aspects of tax legislation and case law insofar as they relate to these fields. If necessary, a Dutch notary may coordinate the activities of other legal professionals. However, a notary does not represent clients in court.
Apart from providing legal advice, a notary also records agreements, either because the law requires it or at the parties’ request. The formal document drawn up by a notary, which is known as a notarial instrument, constitutes definite proof that the date and the parties’ signature are correct. A notary is required to retain the original instrument and to issue the parties with certified copies. A specially-endorsed copy, known as the execution copy, provides conclusive evidence of title in the same way as a court judgment. It follows that the holder of a notarial instrument need not conduct legal proceedings to prove the authenticity of an instrument. By contrast, a deed drawn up by an English solicitor is not treated as an authentic document and cannot therefore be executed as such in the Netherlands.
The new Notaries Act (Wet op het Notarisambt) effective 1 October 1999 (156 years after the original act) reinforces the official position of notaries, but also permits a freer market for the services they provide. The consolidation of the notary’s official position is, for example, reflected in the way the requirements of impartiality and independence have been enshrined in law, in the many regulations a notary and junior notary are required to observe, and also in the fact that a notary is not permitted to act as an attorney-at-law. The introduction of market forces is reflected in the greater scope for junior notaries to become a notary and the greater scope for competition. However, the introduction of the new Notaries Act has left the system basically unchanged: the Dutch notary forms part of the Latin notarial profession. While she or he is granted authority to exercise official powers and the instruments drawn up by him or her have special evidential force in some respects, he or she is also an entrepreneur since she or he receives her or his fees not from the authorities but from his or her clients.
The new Act makes it easier for junior notaries wishing to set up a practice and allows notaries more freedom in the fees they are permitted to charge. The Act has provided for the establishment of an external committee of experts; if junior notaries can submit a sound business plan to this committee, they have more opportunity than before to set up their own practice. The greater freedom in the fees a notary is permitted to charge implies that the Royal Dutch Notarial Society no longer gives rules for fees or lays down recommended rates. Since 1 July 2003 notaries have been in principle free to set their own fees. Maximum rates fixed by the authorities now apply only to family law services in certain circumstances.
France
A French civil-law notary, or notaire, is a public officer appointed by the Minister of Justice, a.k.a., "Keeper of the Seals". In France, any contract between private parties and prepared by a notary is a public instrument. Any instrument in notarial form automatically :
- Provides direct incontrovertable evidence of the date.
- Is probative of the contents therein contained which can only be rebutted through a complex procedure similar to contesting court rulings on grounds of impartiality.
- Has executory force to obtain payment for a debt without the need for a court order.
Notaries engage in a wide variety of legal activities ranging from contract drafting and legal advising. They have a monopoly on a few areas of private law, namely family law and real estate conveyancing. Preparing notarial acts between private parties, advising the parties of the scope of their contractual obligations, ensuring that the contract is fair and unbiased, and acting as a non-contentious and impartial advocate for the contract, the notary prevents and resolves potential conflicts of interest.
Notarial fees for their acts are based on a fixed scale set by the French government and notaries are required to post a fee schedule. However, fees for legal counsel and advising and the drafting of business or corporate acts are generally negotiable between notary and client.
Notaries are highly-trained professionals in family law and successions. They are also experts in the law of property with exclusive access to France's M.I.N. database which contains all property transfer and conveyance information. This gives notaries a singular advantage in guaging the property market, thus allowing him or her to valuate property, conduct transactions, and handle taxes and financing.
All French notaries are jointly liable for professional errors in the performance of their duties. Joint liability of this kind is not known for any other profession in the world.
In France, when a notarial act is passed before one notary subscribing, it is said to be ordinaire "standard", and when before two notaries with the second attesting, then it is solonnel "formal". Acts may be passed in duplicate or simple originals, or en minute and en brevet respectively. When passed in simple original, the single original duly executed is issued to the client and then just logged in the notary's register. Originally, en minute meant that an original in minute form was archived and a fully engrossed execution copy (called a grosse) was given to the client; however, nowadays, it is more common to produce two original conform copies. Originals are only drawn up once and should a past client lose an original or need copies that person only has the right to receive exemplifications (expédition) of the act.
All French notaries are part of and regulated by a local or regional Society of Notaries, or Chambre des notaires.
Germany
In Germany, the Notars (pl. Notare) main function is in contracting agreements in specialized areas of:
- Property law
- Deeds and conveyances
- Successions
- Family law
- Corporate law
A Notar is required to have the equivalent education of other judicial and legal officers like a judge or an attorney. A German civil-law notary is appointed by his or her state, authorised to authenticate and attest acts, and charged with providing independent and impartial advice to all contracting parties. Depending on the state, German notaries practice either singly as a notary or dually a solicitor and notary. In most parts of Germany, notaries maintain independent practices and do not generally work for the Government except in Baden-Württemberg where they are staffed in government agencies and offices.
German notaries prepare acts according to Federal law and provide legal advice regarding contracts and obligations. The notary is required by law to read over aloud the act to the parties who then sign with the notary. The notary places his official notarial seal on the act to give it authentic form.
In Germany, notaries are very important in day-to-day business. All conveyances must be signed and sealed at the office of a civil-law notary pursuant to Section 311(b) of the German Civil Code.
Other Countries
As a general rule, countries who formerly were colonies or viceroyalties of Spain, France or Portugal, have retained a civil law tradition and, accordingly, a civil-law notarial profession. This is the case with most Latin American and French-speaking African countries, but not so of Asian countries.
The International Union of Notaries
Most of the countries which have civil-law notaries are members of the International Union of Notaries (UINL). Members include:
Albania, Andorra, Armenia, Austria, Belgium, Bulgaria, Croatia, Czech Republic, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, United Kingdom (only the City of London), Luxembourg, Malta, Moldava, Monaco, Netherlands, Poland, Portugal, Romania, Russia, San Marino, Slovakia, Slovenia, Spain, Switzerland, Macedonia, The Vatican and Turkey.
Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, El Salvador, Ecuador, Guatemala, Haiti, Honduras, Louisiana (United States), Mexico, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Quebec (Canada), Uruguay, and Venezuela.
Algeria, Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Gabon, Guinea, Ivory Coast, Mali, Morocco, Niger, Senegal and Togo.
Bangladesh, China (People's Republic), Indonesia, Japan.
The members of the Union are represented by their respective National Councils or by similar national organisations and by notarial districts and regional or provincial societies of notaries.
The UINL has preferential relations with professional legal officers who fulfil notarial duties in various countries (or federated States within a Federation) or with the bodies that represent them.
The countries that have asked to join the Union are: Georgia, Mauritius Islands, Kazakhstan, Mauritania, Ukraine, Belarus, Bosnia-Herzegovina, Cambodia, Iran, Kyrgyzstan, Laos, Madagascar, New Zealand, the Philippines, Serbia, the Seychelles, South Korea, Tunisia and Vietnam.
The federated States that have asked to join the Union are: Alabama, British Columbia, Florida, Illinois, Indiana, and Texas.
History
Origins
Scribes have existed since recorded history, but the notary's authentication tools were first invented in the Fertile Crescent where in Babylon the use of signatures and distinct signs in clay tablets was required. Egypt innovated the use of papyrus and the calame, added legalistic formalism to document preparation, and had specialized notary-scribes. Greek city-states lacked uniformity, but, universally, public instruments, usually deeds and conveyances, were kept in official registers and drafted by scribal mnemone (or basiliki ipographi) who were tied to a certain district and whose written acts trumped oral testimony. These innovations would be combined and adopted under the Roman empire.
Roman Empire
In Rome, a scribe was commonly known as a notarius because he used a form of shorthand, or notae, to take dictation. Different kinds of notarius existed: some recorded proceedings, others transcribed state papers, some supplied magistrates with legal forms, and others registered judgements and decrees. A number were involved with the voluntary, or non-contentious, jurisdiction of the courts by drawing up deeds, wills, and conveyances which could then be sealed before the presiding magistrate and affixed with the official seal of the court, thereby rendering them public and authentic acts. Otherwise, most instruments were in private form.
Yet, drawing up private documents was more the preserve of the tabellio, a professional scribe who held no public office. They used clerks to take shorthand notes and wrote them out in minute form. This was then engrossed into an extended act, duly attested by witnesses and endorsed with a completio, or eschatocol (docquet). Early on and like the notarius, a tabellio's instrument lacked authenticity. Only by attaching copies of the judicial proceedings wherein one party petitions the second party to either challenge or accept the act in open court could the instrument be made authentic, i.e., imbued with fides publica "public faith and credit". In later years, it became possible to register and depsoit a tabellio's acts in public archives to make them authentic.
By the Late Roman period, notarius came to denote registrars attached to the courts of provincial governors, secretaries of emperors, and the highest class of officials in the privy council and the imperial chancery. In the Church, they were administrative secretaries. The tabellios were nicknamed cursore "runners" because of their quick drafting speed and their "cursive" minute hand. They were subsequently known as forenses and publici - from their presence in public places - before being subsumed under the tabulairus, or notary-clerk, functions. Lawyers - or juris prudense or juris consulte - also often acted as notaries.
The Western Dark Ages
With the degeneration of public administration and its assumption by the Church in the West, as well as the replacement of Roman legal writing culture with Germanic oral culture based on witness testimony, secular notaries became obsolete. In a select group of urban areas, such as in Northern Italy and Southern France, Roman law tended to be preserved, at least for civil matters, and there the secular notary lived on mostly as a draftsman. Ecclesiastical notaries in the main perfected a number of common notarial devices, namely the use of ribbons, seals, signums, and the form of the eschatocol, during this time. They also came to be called scrinarius.
In the Frankish kingdom, ecclesiastical notaries were attached to county courts as a registrar who recorded judicial proceedings and prepared and engrossed deeds which were later sealed before the count with the court's official seal to render them public and authentic. Otherwise, it was not until the 9th century, when Charlemagne, in an effort to reform the county court system, began to appoint notaries to accompany itinerant royal commissioners during their assize circuit: these notaries were called royal notaries. By the 10th century, they had become permanent registrars and came to greatly outnumber and then absorb the notaries of the count into their corps. This system was preserved by the Holy Roman Empire.
Byzantine Europe
In the East, however, the tabularius, called symbolaiographos and the juris, the nomikos, continued to thrive. To stem fraud, Justinian reforms codified new precautionary measures for giving a document authenticity, such as the obligatory presence of witnesses to an act's signing and a required recitation before a judge before recordation, a process known as insinuatio. Some measures proved untenable and, with the short supply of administrators and half loss of the Empire, notaries became a primarily urban phenomenon with somewhat relaxed standards of practice.
Eventually, all notarial functions were concentrated into the law-trained nomikos, though the Church would provide notarial services in town and rural settings. The Church also retained the old separation between symbolaiographos, or notary-draftsman, notarios, or notary-scribe, and the clerical nomikos, or notary lawyer. By the 10th century, secular nomikoi had been organized into a regulatory guild, were attached to the State, appointed by the Emperor, and ranked among the highest of legal officers. The introductory portions of their acts also tended to invoke God, and crosses and Christian insignia were often applied to the face of an act. Notarial practice would be slightly westernized under Venetian occupation, but remained substantially unchanged until the end of the Empire.
Late Middle Ages
As Northern Italy came to free itself in the late 11th century from Imperial rule and episcopal authority, it established municipal authorities who, with the increase in literacy, came to rely heavily on the lay notary to produce, archive, and standardize public instruments under municipal seal. In addition, the Venetian pillaging of Byzantine libraries revived bookish learning and led to the founding of law schools, such as at the University of Bologna which trained notaries-at-law. This profession was transmitted from Lombardy to Southern France through trade, first to Languedoc, and eventually northward.
External links
See also
British Commonwealth
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