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civil law notary

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    civil law notary civil law notary Document Transcript

    • Civil law notaryCivil-law notaries, or Latin notaries, are lawyers of noncontentious private civil law who draft, take, andrecord legal instruments for private parties, provide legal advice and give attendance in person, and arevested as public officers with the authentication power of the State. Unlike notaries public, theircommon-law counterparts, civil-law notaries are highly-trained, licensed practitioners providing a fullrange of regulated legal services, and whereas they hold a public office, they nonetheless operateusually but not always in private practice and are paid on a fee-for-service basis. They often receivethe same education as attorneys at civil law but without qualifications in advocacy, procedural law, orthe law of evidence, somewhat comparable to solicitor training in certain common-law countries.Attorney directory states that Civil-law notaries are limited to areas of private law, that is, domestic lawwhich 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 commercialconveyancing 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 clients behalf;their role is limited to drafting, authenticating, and registering certain types of transactional or legalinstruments. In some countries, such as the Netherlands, France or Italy, among others, they also retainand keep a minute copy of their instruments in the form of memoranda in notarial protocols, orarchives.Child support attorney explains that notaries generally hold undergraduate degrees in civil law andgraduate degrees in notarial law. Notarial law involves expertise in a broad spectrum of private lawincluding 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 articledclerkship as a trainee notary and usually spend some years as a junior associate in a notarial firm beforeworking as a partner or opening a private practice. Any such practice is usually tightly regulated, andmost countries parcel out areas into notarial districts with a set number of notary positions. This has theeffect of making notarial appointments very limited.As a lawyer, a civil-law notary prepares legal instruments of writing called notarial acts (Fr acte notarié,Sp acta notarial, It atto notarile, Du notariële akte, Ger notarielle Urkunde, Notariatsurkunde). Theseacts 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 accordingto strict prescribed formalities of language and often form precedents. A notarial act is a probativeinstrument, meaning it is self-authenticating, presumed to be drawn in due form of law, and given fullfaith 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 faciepresumption of validity attaches to narrations of client-provided information.The "valid" portions areopen to rebuttal, but the probative portions can only be challenged through an action of improbation inwhich a contesting party bears the burden of bringing a collateral attack against the acts probativity byproving a willful material error by full, clear and strong evidence. This stems from the fact that a notaryis expected to verify the facts, assertions, or events mentioned in his act, thereby assuming liability forand giving warrant to its contents. To be probative, a notarial act must be signed by the parties to theact, instrumentary witnesses, and the notary. Notarial acts are immediately executory and enforceable,like court orders, meaning they do not require judicial notice or supervision.California attorney search shows that traditionally, notarial acts in public form are first noted asminutes (originally known as protocols; Fr minute, It matrice, Sp matriz, Du minuut, Ger Urschrift), thatis, as memoranda or rough drafts. In the past, this involved two kinds: first, the brief notes or roughminutes (It. abreviatura, imbreviatura, nota), which were in shorthand, small lettering (known as aminute 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 fairminutes constituted a minute copy which was filed and archived in a notarys protocol (Fr protocole,It/Sp protocolo, Ger Urkundenrolle), thereafter known as the protocol copy. The particulars of the actappearer, fees, subject matter, witnesses, date, and so forth were recorded in a register or logbookand the original briefs were inserted into minute-books. Now, however, it is more common to produceonly 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 thetransactional details but also the formulaic language and wording of notarial acts. It is also the only copythat has fresh signatures and seals on it. The engrossed copy is issued to the client or clients, referred toas an appearer or appearers. However, appearers are generally only entitled to one full endorsedexecution copy, so any other copy issued thereafter is an exemplified notarial copy which does notcontain the appearers fresh signatures and lacks an enactment clause and anything else that wouldmake 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 referencepurposes.In some cases, acts are drawn up in private form, that is, only an execution copy is produced and issuedto the appearer, and the notary does not retain a protocol copy of any kind. This applies to privateinstruments intended for a single party, having short term legal effect, and not producing third partybenefits, 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 apublic officer (the notary), thereby making the act a public instrument.Juvenile attorney explains that one of the things that distinguishes a civil-law notarys acts from acommon lawyer is the fact that, under common law, drafts and non-identical copies are considered tobe separate documents whereas under civil law this is not necessarily so. Minutes, which are in manycases 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 ofwriting, as distinguished from the copy with executory force, or instrumentum.Save for Louisiana, Puerto Rico, and Quebec, a civil-law notary should not be confused with a notarypublic 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 ordepositions from witnesses, acknowledge and attest signatures, and certify copies, usually inconjunction with some legal process. In Louisiana, Puerto Rico, and Quebec, private law is traditionallybased on the French and Spanish civil codes, giving notaries greater legal powers, including the right toprepare 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,are often confused by the office of notary public and have been defrauded by dishonest notariesmisrepresenting themselves as having legal powers. Thus, in some states there have been ongoingefforts to prohibit notaries public from listing themselves as notario público. Such a law has existed formore than fifteen years in California. Similar laws now exist in Texas, Illinois, Tennessee, Georgia, andFlorida.Florida (1997) and Alabama (1999) have enacted statutes allowing for the appointment of Florida[5] orAlabamaattorneys as civil-law notaries with the power to authenticate documents, facts andtransactions. This is not the same as a notary public appointment. Attorneys with a minimum of 5 yearsof Bar membership are appointed after specialized training and state examination. Acts of Florida andAlabama civil-law notaries are given both domestic and international effect under their enablingstatutes.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 taxadvisors. This is apparent first and foremost from the fact that notaries are public officials, appointed tooffice, and who provide regulated services. As a licensed lawyer, a notary takes on clients, is paid on afee-for-service basis, and is appointed for life by the Crown. Life appointment is designed to safeguardthe independence needed by notaries to discharge their functions.Notaries are independent and disinterested. Unlike attorneys or legal advisors, a notary does notrepresent 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 realproperty is conveyed, notaries act for both the seller and buyer. They are subject to the legalprofessional privilege and are therefore dutybound not to betray client confidentiality, thereby givingthem the right to withhold information in court as would an attorney or doctor. In cases where a notaryacts as legal advisor to a particular interested party, that notary is supposed to counsel all partiesincluding 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. Ifnecessary, 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 partiesrequest. Under Dutch law, a notarial act is probative as of the date of record (vaste datum) andsubscription of the parties. Notaries archive the minute (protocol copy, Dutch minuut) and issueexemplifications (authentiek afschrift) to the parties. The only fully executed copy, known as theengrossement (grosse), is prima facie demonstrative evidence of its tenor like a court order. There istherefore no need for the party to or custodian of a notarial act to provide extraneous evidence to verifythe acts 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 directlyenforceable in the Netherlands.The new Notaries Act (Wet op het Notarisambt), commenced in October 1999 (156 years after theoriginal act), reinforces the official position of notaries, but also expands upon and adds to theirtraditional services. The consolidation of the notarys official position is, for example, reflected in theway the requirements of impartiality and independence have been enshrined in law, the manyregulations a notary and notarys clerk are required to observe, and the fact that a notary is prohibitedfrom acting as an attorney. Market forces have widened the possibility for notarys clerks to becomenotaries and for competition. However, the new Notaries Act has not introduced substantial changes tothe profession. While Dutch notaries are public officers and their acts are public instruments, they arenot government employees and instead act as independent private practitioners.The new law makes it easier for notarys clerks to set up a practice and gives notaries more freedom indetermining their fees for services. The Act has provided for the establishment of an external committeeof experts; if notarial clerks submit a sound business plan to the committee, they have a greater chanceto 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 notarieshave been free to set their own fees. Maximum rate caps fixed by authorities now apply only to familylaw services in certain circumstances.