Business, Legal & Accounting Glossary
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 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.
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, 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.
A Notaire is a French civil law notary, a public officer working under the jurisdiction of the Ministry of Justice who gives authenticity to legal documents requiring formality under French Law. (Commonly family matters, real-estate deeds and business law).
Notaires are also property experts in France, 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 property matters in France must be negotiated by a qualified Notaire. Fees charged by Notaires are set by the French government.
In Germany, the Notar (pl. Notare) plays an important role in contractual agreements relating to special laws such as
The Notar must have a legal training equivalent to the training of a judge or an attorney. (S)He is appointed by the State government and is authorised to certify deeds. He is 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/her 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). This division is made due to historic reasons. In areas left of river Rhine, where Napoleon once implemented the French Code Civil, still today, there are only “single-profession notaries”, everywhere else in Germany, so right-Rhine areas, an only single person can be “Notar” and “Rechtsanwalt” (solicitor).
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. It is irrevocable.
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).
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.
Most of the countries which have civil law notaries, are affiliated to the International Union of Notaries (UINL). Its members are:
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.
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.
Algeria, Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Gabon, Guinea, Ivory Coast, Mali, Morocco, Niger, Senegal and Togo.
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.
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This glossary post was last updated: 18th April, 2020 | 18 Views.