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Civil-law notary

Lawyer of noncontentious private civil law

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Civil-law notaries are limited to areas of private law, 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, and powers of attorney. 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, France, Italy, or Québec (Canada) among others, they also retain and keep a minute 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, estate and testamentary law, conveyancing and property law, the law of agency, 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 instruments

As a lawyer, a civil-law notary draws up and executes legal instruments called notarial instruments (Fr acte notarié, Sp instrumento notarial, It atto notarile, Du notariële akte, Ger notarielle Urkunde, Notariatsurkunde). To be valid, a notarial instrument must be signed contemporaneously (uno contextu) by the appearer(s) (parties to the instrument), sometimes in the presence of attesting witnesses, before the notary who also signs and officiates the signing ceremony.

Status at law

Notarial instruments, if prima facie duly executed, are:

  • presumed valid and regular;
  • self-authenticating;
  • probative (i.e., proof of their contents);
  • public;
  • self-executing; and
  • have a data certa, i.e., a fixed, unalterable effective date.

Traditionally, notarial instruments trigger a præsumptio veritatis et solemnitatis entailing two consequences—regularity and probativity. First, being an official act, a presumption of regularity attaches to the instrument, meaning all prescribed formalities have been carried out, including the reading over of the instrument. Second, a notarial instrument is self-authenticating and probative, i.e., it constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors. It also means the notary's firsthand (de visu et auditu suis sensibus) narrations of fact are conclusively presumed true and correct, whereas secondhand narrations (appearers' representations) are merely assertio notarii which are rebuttably presumed valid. While all notarial instruments are official documents, they are not all necessarily public; most instruments are in public form, meaning an original is retained in publica custodia by the notary in his or her protocol or recorded with a public registry, but some are in private form, that is, a single original is issued directly to the appearer(s). In either case, the appearer always walks away with an instrument that is self-executing, that is, it requires no further implementing action to be effective and enforceable, just like a court order. Finally, notarial instruments have a fixed effective or signature date (data certa) that cannot be ante- or postdated, or left blank and filled in after signing.

Secondary effects

Notarial instruments cannot be altered or overridden by prior or subsequent instruments under hand (e.g., simple contracts). In other words, for example, a notarial will could not be amended or superseded by a non-notarial codicil or will. They also estop (preclude) an appearer as contract denier from raising most affirmative defenses as to enforceability, including: (1) non est factum, (2) the contents do not correctly express the appearers' intentions, and (3) defenses against formation (e.g., ultra vires, lack of capacity, improper execution, etc.).

One thing that distinguishes a civil-law notary's instruments from those of a common lawyer is the fact that, under common law legal systems, drafts and non-identical copies are considered separate documents, while under civil law public documents may be proved by secondary evidence. An unexecuted minute is deemed firsthand proof of an instrument and considered the original, whereas the engrossment is not. The minute is, therefore, the authenticum, or original instrument of writing, as distinguished from the self-executing copy, or instrumentum.

Rebuttal

A notarial instrument's “valid” portions are open to direct rebuttal, but the “conclusive” portions can, in some jurisdictions, only be rebutted by an action of improbation (Fr inscription de faux, It querela di falso, Germ Fälschungsklage) in which a challenger must bring a collateral attack against the instrument, proving a willful material error by strong, clear, and positively convincing proof, rather than the ordinary preponderance of evidence standard in civil actions. Legally, a successful challenge must overcome the praesumptio iustae causa which attaches to a notarial instrument, the result of which is that said instrument is presumed to have been made or formed with a iusta causa, that is, sufficient legal consideration (causa). This presumption 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. A successfully improbated instrument is null and set aside.

Forms

Nowadays, a public-form instrument is prepared first as an unexecuted original called a minute (Fr minute, It minuta, Sp matriz, Du minuut, Ger Urschrift). The minute is archived in the draftsman notary's protocol (Fr protocole, It protocollo, Sp protocolo, Ger Urkundenrolle). The instrument's particulars—appearer, fees, subject matter, witnesses, date, and so forth—are noted or minuted in a register or logbook. From the minute the notary extends a fully engrossed execution copy, known as an engrossment (Fr/Du grosse, It rogito, Sp testimonio, copia autorizada, Ger Ausfertigung), which is self-executing since it contains not only the material terms but also solemn and statutory notarial wording and, in some jurisdictions, enacting clauses like those found on court orders. It is also the only copy that has fresh signatures and seals on it. The engrossed copy is issued directly to the appearer(s). However, appearers are generally only entitled to one engrossment, so any other copy issued thereafter is a notarial exemplified copy which does not contain the appearers' fresh signatures and lacks the formalities of the engrossment; exemplified copies (Fr expédition, It copia conforme, Sp copia certificada, copia simple, Du uitgift, authentiek afschrift, Ger beglaubigte Abschrift) are therefore only for reference purposes.

Certain types of instruments are passed in private form, that is, only one copy—the original—is made and issued to the appearer while the draftsman notary does not retain a copy. Private-form instruments are usually unilateral, have short-term legal effect, and do not benefit third parties, such as certificates of good standing, powers of attorney, certificates of dishonor, statutory declarations, verifications of fact, rent and pay receipts, and pension and annuity arrears documents.

Additionally, some jurisdictions, especially those influenced by the Austrian Civil Code, divide notarial instruments into three types:

  • operative (Aust Notariatsakt, Du partij-akte, Sp escritura pública): memorializes and effects irrevocable legal business; includes all transactional and governing instruments;
  • declaratory (Aust Notariatsprotokoll, Du proces-verbaal akte, Sp acta notarial): records or notifies legal actions, facts, or rights; includes statutory declarations, company minutes, and registry memorials;
  • certificatory (Germ notarielle Beglaubigung, Du notariële waarmerking, Sp certificación notarial): attests personal status details; includes life certificates, certificates of good standing, copy certifications, signature attestations.

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