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lays down law

Civil law notary

Civil law notaries are trained jurists who often receive the same training as advocating jurists — those with a legal education who become litigators such as barristers in England and Wales and Northern Ireland or avocats in France and in Quebec. In Scotland notaries are qualified solicitors and members of the Law Society of Scotland.

Civil law notaries are usually limited to areas of private law — that law which resolves controversies between private individuals and involves minimal or no state intervention. The most common areas of practice for civil law notaries are in property conveyancing and registration, contract drafting, commercial transactions, successions and other estate related matters. They usually have no authority to appear before tribunals or courts on behalf of their clients; their role is limited to drafting, authenticating, and archiving certain types of important transactional documents. In some jurisdictions such as the Netherlands, France or Italy, they also maintain the official registration of property records, en minute (in minute form).

When a civil law notary authenticates a document, the result (in nearly all jurisdictions that recognize their powers) 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 upon the validity of the document, and must prove the invalidity of the document by clear and convincing evidence.

Difference from common law notaries in the United States

With the exclusion of Louisiana, a civil law notary should not be confused with a notary public in the United States, which has none of the legal powers which civil law notaries possess. Rather, notaries public simply have the power to take oaths or affirmations from witnesses, usually in connection with legal documents. (With the exception of Louisiana where laws are based upon the Civil Code and notaries public have 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 holding themselves out as having greater powers than they actually do. 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, Fla. Admin. Code. 1C-18.001 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.

The 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 duties. Like an attorney, a notary is a legal professional with clients who pay for 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 duties.

This brings us to a second important feature: a notary’s independence and, more importantly, 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 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. He has a duty of secrecy in relation to his 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 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), which came into force on 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 he is granted authority to exercise official powers and the instruments drawn up by him have special evidential force in some respects, he is also an entrepreneur since he receives his fees not from the authorities but from his 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 Notaire is a French civil law notary, a public officer nominated by the Keeper of the Seals, head of the Ministry of Justice. Notaires are delegated a power to enhance any contracts between private individuals, up to the status of an official deed. Thus giving authenticity to legal documents have such strong effects as :
- full evidence of the date ;
- probative force that can be denied only through complex procedure equivalent to contestation of a court decision on the grounds of bias on the part of the judge ;
- automatic enforceability, allowing legal action to obtain payment of the debt without having to obtain a judgment.

The notaires have a wide range of legal activities, both in contract drafting and advising. They have a monopoly on a few matters that are of utmost importance to private individuals : commonly family matters and real-estate conveyancing. Drafting official deeds between private individuals, advising the parties of the scope of their obligations and ensuring that the contract is fair, acting as a voluntary judge of the contract, the notaire prevents and resolves potential conflicts of interests.

The fees of notaires, for official deeds, are based on a fixed scale set by the French government. The fees of notaires, for advising matters, and for official deeds in business matters, are agreed between the customer and his notaire.

Notaires are highly-trained professionals in matters of family laws. They are also property experts, with exclusive access to the M.I.N. database (which contains the information regarding property transactions). This gives the notaire unique insight into the property market, thus allowing him/her to value property, conduct transactions and deal with tax and financing matters.

All notaires are jointly liable for harm to any customer, resulting from any error committed by any notaire in the course of his duty. This rule does not exist in any other profession anywhere in the world.

Germany

In Germany, the Notar (pl. Notare) plays an important role in contractual agreements relating to special laws such as

  1. property law
  2. land charge certification
  3. law of succession
  4. family law
  5. corporate law.

The Notar must have a legal training equivalent to the training of a judge or an attorney. He is appointed by the State government, authorised to certify deeds, and obliged to provide independent and impartial advice to all contractual parties. Depending on the State, German notaries officiate either as a "single-profession notary" (i.e. his only profession is being a civil law notary), or as a "solicitor and notary" (i.e. a solicitor who may also act as civil law notary). In most parts of Germany, notaries are not in the employ of the state, the exception being the state of Baden-Württemberg where they are mostly civil servants. The notary drafts the deeds in accordance with German law and provides legal advice regarding a contract. He will read aloud the deed in front of all parties involved. The deed is signed by all parties and sealed by the notary.

In Germany, a notary is very important to daily business. All property transactions must be signed and sealed at the office of the notary public (§ 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 continued to work under a Civil Code legal system (as opposed to a common law system), and hence have civil law notaries. Such is the case of 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 affiliated to the International Union of Notaries (UINL). Its members are:

  • Europe (34)

Albania, Andorra, Armenia, Austria, Belgium (FR) / (NL), 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.

  • America (23)

Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, El Salvador, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Uruguay, United States (only the State of Louisiana) and Venezuela.

  • Africa (15)

Algeria, Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Gabon, Guinea, Ivory Coast, Mali, Morocco, Niger, Senegal and Togo.

  • Asia (3)

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 institutions of a regional or provincial nature. The UINL has privileged relations with professional jurists 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.

References

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