Civil law notary
Encyclopedia
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s of noncontentious
Contentious jurisdiction
In English ecclesiastical law, contentious jurisdiction is jurisdiction over matters in controversy between parties, in contradistinction to voluntary jurisdiction, or that exercised upon matters not opposed or controverted.The Lords Chief Justices, judges, etc., had a contentious jurisdiction;...
private
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
who draft, take, and record legal instrument
Legal instrument
Legal instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or...
s for private parties, provide legal advice
Legal advice
In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court , ordinarily in exchange for financial or other tangible compensation...
and give attendance in person, and are vested as public officers with the authentication power of the State. Unlike notaries public
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
, their common-law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
counterparts, civil-law notaries are highly-trained, licensed practitioners providing a full range of regulated legal services, and whereas they hold a public office, they nonetheless operate usually – but not always – in private practice and are paid on a fee-for-service basis. They often receive the same education as attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s at civil law but without qualifications in advocacy, procedural law
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
, or the law of evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
, somewhat comparable to solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
training in certain common-law countries.
Civil-law notaries are limited to areas of private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
, that is, domestic law which regulates the relationships between individuals and in which the State is not directly concerned. The most common areas of practice for civil-law notaries are in residential and commercial conveyancing and registration, contract drafting, company formation, successions and estate planning
Estate planning
Estate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses...
, and powers of attorney
Power of attorney
A power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
. 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 or legal instruments. In some countries, such as the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
or Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, among others, they also retain and keep a minute
Minutes
Minutes, also known as protocols, are the instant written record of a meeting or hearing. They typically describe the events of the meeting, starting with a list of attendees, a statement of the issues considered by the participants, and related responses or decisions for the issues.Minutes may be...
copy of their instruments – in the form of memoranda – in notarial protocols, or archives.
Notaries generally hold undergraduate degrees in civil law and graduate degrees in notarial law. Notarial law involves expertise in a broad spectrum of private law including family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, estate and testamentary law, conveyancing and property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, the law of agency
Agency (law)
The law of agency is an area of commercial law dealing with a contractual or quasi-contractual, or non-contractual set of relationships when a person, called the agent, is authorized to act on behalf of another to create a legal relationship with a third party...
, and contract and company law. Student notaries must complete a long apprenticeship or articled clerkship as a trainee notary and usually spend some years as a junior associate in a notarial firm before working as a partner or opening a private practice. Any such practice is usually tightly regulated, and most countries parcel out areas into notarial districts with a set number of notary positions. This has the effect of making notarial appointments very limited.
Notarial acts at civil law
As a lawyer, a civil-law notary prepares legal instruments of writing called notarial actsAct (document)
An act is an instrument that records a fact or something that has been said, done, or agreed. Acts generally take the form of legal instruments of writing that have probative value and executory force...
(Fr acte notarié, Sp acta notarial, It atto notarile, Du notariële akte, Ger notarielle Urkunde, Notariatsurkunde). These acts are public instruments, that is, recorded with and authenticated by a public office or employee, namely, the notary. They also require unusual solemnity, being written with notarial wording according to strict prescribed formalities of language and often form precedents. A notarial act is a probative instrument, meaning it is self-authenticating, presumed to be drawn in due form of law, and given full faith and credit in and out of court insofar as concerns the narration of facts or events witnessed or verified by the notary or procedures undertaken by the notary. However, only a prima facie presumption of validity attaches to narrations of client-provided information. The "valid" portions are open to rebuttal, but the probative portions can only be challenged through an action of improbation in which a contesting party bears the burden of bringing a collateral attack against the act's probativity by proving a willful material error by full, clear and strong evidence. This stems from the fact that a notary is expected to verify the facts, assertions, or events mentioned in his act, thereby assuming liability for and giving warrant to its contents. To be probative, a notarial act must be signed by the parties to the act, instrumentary witnesses, and the notary. Notarial acts are immediately executory and enforceable, like court orders, meaning they do not require judicial notice or supervision.
Drafting phases
Traditionally, notarial acts in public form are first noted as minutes (originally known as protocols; Fr minute, It matrice, Sp matriz, Du minuut, Ger Urschrift), that is, as memoranda or rough drafts. In the past, this involved two kinds: first, the brief notes or rough minutes (It. abreviatura, imbreviatura, nota), which were in shorthand, small lettering (known as a minute hand), and highly abbreviated, and second, the fair minutes (Fr. étendue, Lat. protocollum), which were written out in long hand and included fully formed sentences and details of the act. The fair minutes constituted a minute copy which was filed and archived in a notary's protocol (Fr protocole, It/Sp protocolo, Ger Urkundenrolle), thereafter known as the protocol copy. The particulars of the act – appearer, fees, subject matter, witnesses, date, and so forth – were recorded in a register or logbook and the original briefs were inserted into minute-books. Now, however, it is more common to produce only one set of minutes, if any.From the protocol copy the notary extends a fully engrossed execution copy, known as an engrossment (Fr/Du grosse, It spedizione in forma esecutiva, Sp testimonio, copia autorizada, Ger Ausfertigung), which serves for all intents and purposes as the genuine document since it contains not only the transactional details but also the formulaic language and wording of notarial acts. It is also the only copy that has fresh signatures and seals on it. The engrossed copy is issued to the client or clients, referred to as an appearer or appearers. However, appearers are generally only entitled to one full endorsed execution copy, so any other copy issued thereafter is an exemplified notarial copy which does not contain the appearers' fresh signatures and lacks an enactment clause and anything else that would make it valid in the eyes of the law; exemplifications (Fr expédition, It spedizione, Sp copia certificada, copia simple, Du authentiek afschrift, Ger beglaubigte Abschrift) are therefore only for reference purposes.
In some cases, acts are drawn up in private form, that is, only an execution copy is produced and issued to the appearer, and the notary does not retain a protocol copy of any kind. This applies to private instruments intended for a single party, having short term legal effect, and not producing third party benefits, such as certificates of good standing, powers of attorney, promissory notes, covenants, notarial affidavits and attestations, rent and pay receipts, and pension and annuity arrears documents. In other cases, acts are in public form, with the minute being the protocol copy retained of record with a public officer (the notary), thereby making the act a public instrument.
Status at law
One of the things that distinguishes a civil-law notary's acts from a common lawyer is the fact that, under common law, drafts and non-identical copies are considered to be separate documents whereas under civil law this is not necessarily so. Minutes, which are in many cases illegible and incomplete, are deemed firsthand proof of an act and are considered to be originals, whereas the engrossment is not. The minute is therefore the authenticum, or original instrument of writing, as distinguished from the copy with executory force, or instrumentum.Notarial instruments also cannot be altered or overridden by pre-existing or subsequent private documents (instruments under hand, deeds, contracts).
Distinction from notaries public
Save for Louisiana, Puerto Rico, and Quebec, a civil-law notary should not be confused with a notary publicNotary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
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 affidavits, declarations or depositions from witnesses, acknowledge and attest 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 greater legal 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 Latin America
Latin America
Latin America is a region of the Americas where Romance languages – particularly Spanish and Portuguese, and variably French – are primarily spoken. Latin America has an area of approximately 21,069,500 km² , almost 3.9% of the Earth's surface or 14.1% of its land surface area...
, 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
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
. Similar laws now exist in Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
, Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
, and Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
.
Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
(1997) and Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
(1999) have enacted statutes allowing for the appointment of Florida or Alabama attorneys as civil-law notaries with the power to authenticate documents, facts and transactions. This is not the same as a notary public appointment. Attorneys with a minimum of 5 years of Bar membership are appointed after specialized training and state examination. Acts of Florida and Alabama civil-law notaries are given both domestic and international effect under their enabling statutes.
Netherlands
Dutch notaries are part of the Royal Society of Notaries (Koninklijke Notariële Beroepsorganisatie (KNB)) and occupy a special position among other legal practitioners such as attorneys, court bailiffs, and tax advisors. This is apparent first and foremost from the fact that notaries are public officials, appointed to office, and who provide regulated services. As a licensed lawyer, a notary takes on clients, is paid on a fee-for-service basis, and is appointed for life by the Crown. Life appointment is designed to safeguard the independence needed by notaries to discharge their functions.Notaries are independent and disinterested. Unlike attorneys or legal advisors, a notary does not represent or act in the interest of any one party. Instead, under the Dutch legal system, notaries are required to act impartially on behalf of all parties to a contract or transaction. For example, when real property is conveyed, notaries act for both the seller and buyer. They are subject to the legal professional privilege and are therefore dutybound not to betray client confidentiality, thereby giving them the right to withhold information in court as would an attorney or doctor. In cases where a notary acts as legal advisor to a particular interested party, that notary is supposed to counsel all parties including third party beneficiaries.
All notaries are law graduates. Not only are they experts in family, estate, company, and property laws, but they must also stay up-to-date about pertinent cases and certain aspects of tax legislation. If necessary, a Dutch notary will instruct and rely on the services of other legal practitioners. However, under no circumstances may a notary represent clients in court.
Apart from adivsing, a notary also registers and retains instruments either by statute or at the parties' request. Under Dutch law, a notarial act is probative as of the date of record (vaste datum) and subscription of the parties. Notaries archive the minute (protocol copy, Dutch minuut) and issue exemplifications
Exemplified copy
An exemplified copy is an official attested copy or transcript of a public instrument, made under the seal and original pen-in-hand signature of a court or public functionary and in the name of the sovereign, e.g., "The People of the State of New York"...
(authentiek afschrift) to the parties. The only fully executed copy, known as the engrossement (grosse), is prima facie demonstrative evidence of its tenor like a court order. There is therefore no need for the party to or custodian of a notarial act to provide extraneous evidence to verify the act's probativity. And under Dutch law, for acts to be executory, they must be public instruments, which is why any instrument drafted by a common-law lawyer, which is never public, is not directly enforceable in the Netherlands.
The new Notaries Act (Wet op het Notarisambt), commenced in October 1999 (156 years after the original act), reinforces the official position of notaries, but also expands upon and adds to their traditional services. 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, the many regulations a notary and notary's clerk are required to observe, and the fact that a notary is prohibited from acting as an attorney. Market forces have widened the possibility for notary's clerks to become notaries and for competition. However, the new Notaries Act has not introduced substantial changes to the profession. While Dutch notaries are public officers and their acts are public instruments, they are not government employees and instead act as independent private practitioners.
The new law makes it easier for notary's clerks to set up a practice and gives notaries more freedom in determining their fees for services. The Act has provided for the establishment of an external committee of experts; if notarial clerks submit a sound business plan to the committee, they have a greater chance to be approved to set up their own practice. Greater freedom in the fees a notary can charge implies that the Royal Society of Notaries no longer fixes fees or recommends rates. Since July 2003 notaries have been free to set their own fees. Maximum rate caps fixed by authorities now apply only to family law services in certain circumstances.
France
A French civil-law notary, or notaire, is a highly specialized lawyer in private practice appointed as a public officer by the justice minister. The profession began admitting women in 1948, and by the start of 2008 women numbered 2,104 and accounted for 24.2% of all notaries. A notarial office (étude) usually includes ancillary staff like notaries' clerks (clerc de notaire) of different kinds, e.g., junior (clerc employé), specialist (clerc technicien), and supervisory clerks (clerc cadre), as well as legal secretaries, trainee notaries (with degrees) (notaire stagiaire) and apprentices (without degrees), and accountants. In smaller offices, estate clerks are kept separate since their work differs significantly from other practice areas; in larger firms, clerks are separated into divisions by specialization. While most clerks are caseworkers, some work as costing specialists or formalities clerks. Secretaries oftentimes go on to pursue clerking.Education
Notaries' clerks—a form of paralegalParalegal
Paralegal is used in most jurisdictions to describe a paraprofessional who assists qualified lawyers in their legal work. This is true in the United States and many other countries. However, in Ontario, Canada, paralegals are licensed by the Law Society of Upper Canada, giving paralegals an...
—earn undergraduate law degrees (diplôme de notariat de 1er cycle) from an accredited notarial law school (école de notariat). Managing clerks (principal clerc) must obtain a special graduate clerking degree (diplôme de premier clerc).
Notaries, who must already hold a one-year Master's degree in civil law (MCL) (master 1 en droit), must enroll in either a university school of law or a College of Notaries (Centre de formation professionnelle notariale) to earn a second graduate degree in notarial law for which specializations exist, including: conflict of laws, advanced tax law, overseas territories, EU law, struggling businesses, company law, intellectual property, rural law and agri-business, city planning and environmental law, and estate planning.
For graduate degrees, there are usually two options: the degree program (voie universitaire) and the diplomate program (voie professionnelle).
- Degree program: This option requires one year of courses to earn a Master's in notarial law (master 2 en droit notarial). This is followed by a two-year, in-office notary traineeship (stage de notaire) capped by a Master's thesis. At the end, the student is awarded a Postgraduate Diploma in Notarial Law (diplôme supérieur de notariat, or DSN).
- Diplomate program: This option begins with a competitive entrance exam in applied legal studies and is followed by one year of courses to earn a Graduate Diploma in Notarial Practice (diplôme d'aptitude aux fonctions de notaire) from a College of Notaries. Students must also complete a two-year traineeship supplemented with on-site training sessions (3 years).
Formerly, there was a non-degree option involving a lengthy apprenticeship. In addition, notaries' clerks with a minimum of 9 years of in-office experience, with 6 of those spent as a junior clerk, as well as judges and attorneys/solicitors of 6 years standing may become a notary by passing a professional exam. Notaries are also required to attend regular continuing education courses and seminars.
Practice
In France, notarial acts, whether in public (en minute) or private form (en brevet), have a high degree of authority and are considered probative instruments (acte authentique), received as firsthand and primary evidence in court, and thereby accorded high evidentiary value and executory force, and deemed to be proof of their contents. A notarial instrument also fixes the date at which its parties are bound without prior delivery and acceptance (as opposed to a deedDeed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
or contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
under common law) and the data (date certaine) of the act's execution so as to safeguard against third party claims. To be rebutted or challenged, a notarial act must be subjected to a rescissory action called an improbation action (inscription de faux) to prove the act contains errors or has been maliciously altered, interlineated, edited, or falsified.
Notaries engage in a wide variety of legal activities ranging from contract drafting and legal advising – primarily in company, family, and property law. Roughly 50% of French notarial business involves real estate conveyancing, leasing, and construction. Domestic affairs, e.g., adoptions, marital agreements, divorces, and the like, as well as estate planning account for another 26%. Preparing notarial acts for private parties, informing parties as to the scope of their contractual obligations, ensuring that the instrument or contract is fair and unbiased, and acting as a non-contentious and impartial advocate for the business transaction as a whole, notaries prevent and resolve many potential conflicts beforehand.
Notaries have a monopoly on marital agreements, marital property systems, estate administration, and conveyancing (realty sales, mortgages, etc.). 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 gauging the property market, thus allowing them to appraise property, conduct transactions, and handle taxes and financing.
In France, when a notarial act is passed before one notary subscribing, it is said to be ordinaire, or in simple form, and when before two notaries with the second attesting, then it is solennel, or in solemn form. Acts may be drawn up in public or private form, said en minute and en brevet respectively. When drawn in private form, the single executed original is issued to the client, and its particulars are logged in the notary's register. When in public form, one un-executed minute copy (minute) is retained of record in the notary's protocol, thereby constituting a public instrument, and a fully engrossed execution copy (called a grosse and now termed copie exécutoire) is issued to the client and is headed and footed with the same formule exécutoire or "enactment clause" used on court orders and writs. Minutes and engrossements are only drawn up once, and, should a past client lose their copy or need further copies, by law, said person may only receive exemplifications (expédition, now termed copie authentique) of the act. Notaries also issue detailed or summary abstracts of acts (extrait authentique) and make notarial certified copies (copie collationnée) of documents not in their custody.
Professional organizations
All French notaries are jointly and severally liable for professional errors in the performance of their duties. When liable, damages are paid from a nationwide consolidated indemnity fund. Group liability of this kind is otherwise unprecedented. Notaries are therefore required to take out professional indemnity insurance for the due protection of their clients. French notaries are part of and regulated by a local or county notaries society, or chambre des notaires, on whose advice notaries are appointed and who conduct annual accounting audits of notarial offices, establish and regulate professional and ethical standards, and can censure or temporarily suspend notaries. Notaries are also members of a regional notaries council (conseil des notaires) which acts very much like a common-law college of notaries by providing continuing education and other support services to notaries; they also take disciplinary action against notary misconduct including dismissal, removal from office, and revoking a notary's license to practice. The regional councils are governed and headed by the National Council of Notaries (Conseil supérieur du notariat) which conducts surprise inspections, provides research, outlook, and public relations services, and acts as the profession's administrative head.Germany
In Germany, the main function of a Notar (pl. Notare) is in contracting agreements in specialized areas of:- Property law
- Deeds and conveyances
- Successions
- Family law
- Corporate law
German notaries are required to have an education equivalent to other law professionals like judges or lawyers. German civil-law notaries are appointed by their state, authenticate and attest instruments, and provide independent and impartial advice to all interested parties. Depending on the state, German notaries practice either exclusively as a notary (Nur-Notar) or dually as a notary-attorney (Anwaltsnotar). In most parts of Germany, notaries maintain private practices and do not generally work for the State except in Baden-Württemberg
Baden-Württemberg
Baden-Württemberg is one of the 16 states of Germany. Baden-Württemberg is in the southwestern part of the country to the east of the Upper Rhine, and is the third largest in both area and population of Germany's sixteen states, with an area of and 10.7 million inhabitants...
where government notaries (Beamtennotar) are regularly staffed in State agencies and offices. Notaries have generally statewide jurisdiction, though in Württemberg, notaries are district notaries (Bezirksnotar) confined to special notarial districts.
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 affixes his official notarial seal on the act to give it probative form.
In Germany, notaries are very important in day-to-day business. For example, all conveyances of real estate must be signed and sealed at the office of a civil-law notary pursuant to s. 311(b) of the German Civil Code (Bürgerliches Gesetzbuch
Bürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
or BGB). Likewise, the assignment of shares in a German limited liability company (Gesellschaft mit beschränkter Haftung
Gesellschaft mit beschränkter Haftung
Gesellschaft mit beschränkter Haftung is a type of legal entityvery common in Germany, Austria, Switzerland, and other Central European countries...
or GmbH) must be notarised under s. 15-3 of the Limited Liability Companies Act (GmbHG).
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:- Europe (34)
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, Moldova, Monaco, Netherlands, Poland, Portugal, Romania, Russia, San Marino, Slovakia, Slovenia, Spain, Switzerland, Macedonia, The Vatican and Turkey.
- Americas (23)
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.
- Africa (15)
Algeria, Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Gabon, Guinea, Ivory Coast, Mali, Morocco, Niger, Senegal and Togo.
- Asia (3)
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
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
) 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.
Origins
ScribeScribe
A scribe is a person who writes books or documents by hand as a profession and helps the city keep track of its records. The profession, previously found in all literate cultures in some form, lost most of its importance and status with the advent of printing...
s have existed since recorded history, but the notary's authentication tools were first invented in the Fertile Crescent
Fertile Crescent
The Fertile Crescent, nicknamed "The Cradle of Civilization" for the fact the first civilizations started there, is a crescent-shaped region containing the comparatively moist and fertile land of otherwise arid and semi-arid Western Asia. The term was first used by University of Chicago...
where in Babylon
Babylon
Babylon was an Akkadian city-state of ancient Mesopotamia, the remains of which are found in present-day Al Hillah, Babil Province, Iraq, about 85 kilometers south of Baghdad...
the use of signatures and distinct signs in clay tablets was required. Egypt
Ancient Egypt
Ancient Egypt was an ancient civilization of Northeastern Africa, concentrated along the lower reaches of the Nile River in what is now the modern country of Egypt. Egyptian civilization coalesced around 3150 BC with the political unification of Upper and Lower Egypt under the first pharaoh...
innovated the use of papyrus
Papyrus
Papyrus is a thick paper-like material produced from the pith of the papyrus plant, Cyperus papyrus, a wetland sedge that was once abundant in the Nile Delta of Egypt....
and the calame, added legalistic formalism to document preparation, and had specialized notary-scribes, called sesh n pero "pharaoh's scribe" or sesh n po "scribe of the nome"—agoranomos in Ptolemaic times—who gave authenticity to instruments without the need for witnesses. In Ancient Israel there existed a similar institution of the notary-scribe known as the sofér. Greek
Ancient Greece
Ancient Greece is a civilization belonging to a period of Greek history that lasted from the Archaic period of the 8th to 6th centuries BC to the end of antiquity. Immediately following this period was the beginning of the Early Middle Ages and the Byzantine era. Included in Ancient Greece is the...
city-states lacked uniformity, but, universally, public instruments
Legal instrument
Legal instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or...
, usually deed
Deed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
s and conveyances
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
, were kept in official registers and drafted by scribal mnemone (or basiliki ipographi "king's scribes") who were tied to a certain district and whose written acts
Act (document)
An act is an instrument that records a fact or something that has been said, done, or agreed. Acts generally take the form of legal instruments of writing that have probative value and executory force...
trumped oral testimony. These innovations would be combined and adopted under the Roman empire
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
.
Roman Empire
In Rome, scribes (scribae) acted as court recorders and copyists of instruments, whereas the notarius took dictationDictation
Dictation can refer to:*Dictation , when one person speaks while another person transcribes what is spoken.*A dictation machine, a device used to record speech for transcription....
and raw minutes or memoranda (notae) of proceedings in shorthand. 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 noncontentious 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 probative acts. Otherwise, most instruments were in private form. One type of notarius was the exceptor who emerged as the official clerk attached to all bureaus and courts and required at all municipal meetings of curiae.
Yet, drawing up private documents was more the preserve of the tabellio, a professional scrivener who held no public office. The tabellio 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
Eschatocol
An eschatocol is the final section of a legal or public document, which may include a formulaic sentence of appreciation, and the attestation of those responsible for the document, i.e., the author, the writer, or the countersigner, principal parties involved, and any witnesses to the enactment or...
(docquet). Early on and like the notarius, a tabellio's instrument lacked probativity. Only by attaching copies of the judicial proceedings wherein one party petitions the second party to either contest or accept the act in open court could the instrument be made probative, 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 probative. Both exceptors and tabelliones were organized into civil guilds (collegia, scholae) to ensure the official recording of both public and private acts. Though tabelliones were of lower social status, the position had high mobility, and official posts often drew young nobles.
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 for bishops and monasteries and were important as correspondents in the doctrinal battles of the 3rd and 4th centuries. Constantine himself created scholae of notaries for bishops and their courts. 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.
Early Middle 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 a Germanic oral legal system based on witness testimony and open court proceedings, 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 (notarius ecclesiaie) in the main perfected a number of common notarial devices, namely the use of ribbons, seals, manual signs (signum), and the form of the eschatocol during this time. They also came to be called scrinarius. Pope Gregory the GreatPope Gregory I
Pope Gregory I , better known in English as Gregory the Great, was pope from 3 September 590 until his death...
(r. 590-604) organized papal notarii or scrinarii into a schola; Gregory's registers show that they were responsible for recording correspondence, ordinations, privileges, donations, synodal acts, and matters related to the Patrimony of Saint Peter
Patrimonium Sancti Petri
The expression Patrimonium Sancti Petri, or shorter Patrimonium Petri, meaning 'Patrimony of Peter', originally designated the landed possessions and revenues of various kinds that belonged to the Church of St. Peter The expression Patrimonium Sancti Petri, or shorter Patrimonium Petri, meaning...
, as well as serving as papal advisors, diplomats, and envoys. Similarly, the papal chancery, archive, and library were organized around their efforts.
In northern Italy during the Ostrogothic and Lombard
Lombards
The Lombards , also referred to as Longobards, were a Germanic tribe of Scandinavian origin, who from 568 to 774 ruled a Kingdom in Italy...
periods, the offices of exceptor and tabellio were carried out by scriptores and notaries. The notarius civitatis ("of the city") served Lombard kings and nobles in their courts; notarii ecclesiae continued to aid bishops, abbots, and some of the public. These two kinds of notaries attended the same episcopal schools, and the existence of ecclesiastical notaries led to the demand for secular ones. Unorganized and unregulated "lay notaries" (publici notarii) handled private matters, since the Lombards did not practice insinuation. From the late 7th century on, important associations of notaries (and probably notarial education) existed in Pavia, Cremona, Milan, Lucca, Rome, and Ravenna.
In Merovingian
Merovingian dynasty
The Merovingians were a Salian Frankish dynasty that came to rule the Franks in a region largely corresponding to ancient Gaul from the middle of the 5th century. Their politics involved frequent civil warfare among branches of the family...
France, ecclesiastical notaries, continuing Late Imperial practice, were attached to county courts as clerks of court who recorded proceedings and prepared and engrossed instruments and process 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
Charlemagne
Charlemagne was King of the Franks from 768 and Emperor of the Romans from 800 to his death in 814. He expanded the Frankish kingdom into an empire that incorporated much of Western and Central Europe. During his reign, he conquered Italy and was crowned by Pope Leo III on 25 December 800...
, in an effort to reform the county court system, began to appoint notaries to accompany itinerant royal commissioners during their assize circuit, which notaries were called royal notaries. By the 10th century, they had become permanent clerks of court and came to greatly outnumber and then absorb the comital notaries into their corps. This system was preserved by the Holy Roman Empire
Holy Roman Empire
The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...
.
Charlemagne also raised ecclesiastical notaries to the status of deacon or priest. As a result, the Office of notary became a stepping-stone to higher church office. They continued to serve the public as well before being made obsolete by the full emergence of a lay notarial profession in the 12th century. Charlemagne ordered that every bishop, abbot, and count employ a notary, appointed by himself if necessary. He therefore accepted and altered Lombard practice, formalized it, and spread it to the rest of the empire. His own notarial secretaries were the cancellarii. One notary in particular, Paul the Deacon
Paul the Deacon
Paul the Deacon , also known as Paulus Diaconus, Warnefred, Barnefridus and Cassinensis, , was a Benedictine monk and historian of the Lombards.-Life:...
, played a pivotal role in the Carolingian Renaissance. Paul was trained at Pavia, was chancellor to the Lombard king Desierius, taught at the Frankish palace school (782–787), and may have been responsible for reforming the notarial system. The famous missi dominici oversaw the work of comital (counts') and episcopal notaries, who, under Louis the Pious
Louis the Pious
Louis the Pious , also called the Fair, and the Debonaire, was the King of Aquitaine from 781. He was also King of the Franks and co-Emperor with his father, Charlemagne, from 813...
, were drawn specifically from the noble class. Under Lothair I
Lothair I
Lothair I or Lothar I was the Emperor of the Romans , co-ruling with his father until 840, and the King of Bavaria , Italy and Middle Francia...
, imperial law regulated notarial practice of both episcopal and comital cancellarii and private notaries and limited a notary's geographic jurisdiction.
Byzantine Europe
In the East, however, the tabularius, called symbolaiographos and the juris, the nomikos, continued to thrive. To stem fraud, JustinianJustinian I
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...
reforms codified (cf. 44th and 77th novellae) new precautionary measures for giving a document probativity such as:
- the actual presence of the attesting tabellio and the recording of other witnesses' names,
- the obligatory presence and signatures of witnesses to an act's signing
- dating by regnal and consular year and indiction
- inclusion of an eschatocol in which the tabellio claimed responsibility for the document
- 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 (early 7th c.), notaries became a primarily urban phenomenon with somewhat relaxed standards of practice. Still, they remained the highest-ranking lawyer and instrumental to the legal and court process as Germanic-type oral proceedings were unknown and Roman legalistic traditions survived intact. From the mid-6th century, a large body of centuries-old legal texts was given force of law and became widely circulated. Similarly, the importance of law court officials declined as did lawsuits in regular civil courts, and this in turn allowed private settlements mediated by notaries at lower cost to flourish.
In time, all notarial functions (clerical and law officer) were concentrated into the law-trained nomikos, though the Church
Eastern Orthodox Church
The Orthodox Church, officially called the Orthodox Catholic Church and commonly referred to as the Eastern Orthodox Church, is the second largest Christian denomination in the world, with an estimated 300 million adherents mainly in the countries of Belarus, Bulgaria, Cyprus, Georgia, Greece,...
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
Byzantine Empire
The Byzantine Empire was the Eastern Roman Empire during the periods of Late Antiquity and the Middle Ages, centred on the capital of Constantinople. Known simply as the Roman Empire or Romania to its inhabitants and neighbours, the Empire was the direct continuation of the Ancient Roman State...
.
Late Middle Ages
Imperial RavennaRavenna
Ravenna is the capital city of the Province of Ravenna in the Emilia-Romagna region of Italy and the second largest comune in Italy by land area, although, at , it is little more than half the size of the largest comune, Rome...
retained separate scholae of imperial notaries, ecclesiastical notaries, and tabelliones. However, with the fall of the Exarchate, imperial notaries disappeared with unauthorized tabelliones absorbing most of their legal jurisdiction and function. During the 11th century and the early 12th century, attempts to bring the tabellionate under imperial purview were resisted and failed at Ravenna, though by the 13th century many professionals styled themselves notarius et tabellio, combining both functions in their practice. By the 13th century, even the Ravennati adopted the title "notary by imperial authority," and the retrograde tabellionate slowly dissolved. The ecclesiastical notariate in Ravenna retained its position until the 12th century, but did not interfere in the sphere of the secular notariate. During the 12th century, the lay tabellionate absorbed most of the functions of the church notary, even running Ravenna's episcopal chancery by 1127. Elsewhere in Italy, where it had survived, the independent ecclesiastical notariate likewise slowly disappeared: in Lucca, the comital notariate replaced it during the Carolingian period; and in Bologna, home of the revived imperial legal tradition, the bishop's last clerical notary died in 1133. Even in Rome, lay notaries gained in importance, and in 1211 Pope Innocent III declared that no notary in a church court could hold major orders.
In southern Italy, many areas that fell to the Arabs lost the Lombard notarial tradition, while some, e.g., Puglia, Calabria
Calabria
Calabria , in antiquity known as Bruttium, is a region in southern Italy, south of Naples, located at the "toe" of the Italian Peninsula. The capital city of Calabria is Catanzaro....
, and Lucania
Lucania
Lucania was an ancient district of southern Italy, extending from the Tyrrhenian Sea to the Gulf of Taranto. To the north it adjoined Campania, Samnium and Apulia, and to the south it was separated by a narrow isthmus from the district of Bruttium...
, held to Greco-Byzantine practice. Areas retaining Latin-Lombard traditions used the notarius, but he may have been attached to and authorized through a palace, church, monastery, or even city; or sometimes he was itinerant and without official authority. During the 10th century, Naples
Naples
Naples is a city in Southern Italy, situated on the country's west coast by the Gulf of Naples. Lying between two notable volcanic regions, Mount Vesuvius and the Phlegraean Fields, it is the capital of the region of Campania and of the province of Naples...
maintained a clear organization of notaries (curiali) in a collegio under a primarius aided by a tabularius. Documents were often drawn up by discipuli ("apprentices"), but only the notary could apply the eschatocol. Amalfi
Amalfi
Amalfi is a town and comune in the province of Salerno, in the region of Campania, Italy, on the Gulf of Salerno, c. 35 km southeast of Naples. It lies at the mouth of a deep ravine, at the foot of Monte Cerreto , surrounded by dramatic cliffs and coastal scenery...
followed a looser organization: scribae civitatis ("scriveners") were called curiali by c. 1000, many may have worked only part time, and there was no clear caste of discipuli. Gaeta
Gaeta
Gaeta is a city and comune in the province of Latina, in Lazio, central Italy. Set on a promontory stretching towards the Gulf of Gaeta, it is 120 km from Rome and 80 km from Naples....
retained the scriba civitatis, though mixing Greek with Latin traditions and clerical with secular functions and statuses. In the 10th and 11th centuries, titles included presbyter ("priest") et notarius civitatis and Leo greco-latinus presbyter et scriba civitatis, though by the early 12th century a simple notarius civitatis would do. The southern Italian tradition was for the most part replaced by the Carolingian tradition when the region was conquered by the Normans.
As northern Italy came to free itself in the late 11th century from imperial rule and episcopal authority, it established municipal authorities (known as consulates) 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
University of Bologna
The Alma Mater Studiorum - University of Bologna is the oldest continually operating university in the world, the word 'universitas' being first used by this institution at its foundation. The true date of its founding is uncertain, but believed by most accounts to have been 1088...
which trained notaries-at-law. Similarly, as schools for notaries relied on Byzantine law and came to determine the development of the notarial corps, by the 10th century, the Carolingian and the Byzantine traditions were no longer distinguishable. The Italian notarial profession was transmitted from Lombardy
Lombardy
Lombardy is one of the 20 regions of Italy. The capital is Milan. One-sixth of Italy's population lives in Lombardy and about one fifth of Italy's GDP is produced in this region, making it the most populous and richest region in the country and one of the richest in the whole of Europe...
to southern France through trade, first to Languedoc
Languedoc
Languedoc is a former province of France, now continued in the modern-day régions of Languedoc-Roussillon and Midi-Pyrénées in the south of France, and whose capital city was Toulouse, now in Midi-Pyrénées. It had an area of approximately 42,700 km² .-Geographical Extent:The traditional...
, and eventually northward to Bruges
Bruges
Bruges is the capital and largest city of the province of West Flanders in the Flemish Region of Belgium. It is located in the northwest of the country....
(Flemish Belgium), and on to the eastern Mediterranean.