Define: Civil Law Notary

Quick Summary of Civil Law Notary

A civil law notary is a legal professional authorised to authenticate and certify legal documents, transactions, and contracts in civil law jurisdictions. Unlike common law notaries, who primarily witness signatures and administer oaths, civil law notaries play a more significant role in drafting, interpreting, and executing legal instruments. They are typically highly trained lawyers with specialized expertise in civil law, real estate law, commercial law, or other areas of law relevant to their jurisdiction. Civil law notaries ensure the legality, validity, and enforceability of documents by verifying the identities of parties, confirming their capacity to enter into contracts, and ensuring that the terms of agreements comply with legal requirements and formalities. They often serve as neutral and impartial intermediaries, providing independent legal advice to all parties involved in transactions. Civil law notaries are prevalent in many civil law countries, particularly in continental Europe and Latin America, where their services are essential for formalising legal agreements, property transactions, wills, and other important legal documents.

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 in minute form.

When a civil law notary authenticates a document, the result (in nearly all jurisdictions that recognise their powers) is a nearly conclusive presumption that the document is a true record of the facts asserted or recorded within.[1] 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.

Differences 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, 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.

France

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 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.

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 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 a civil law notary). This division is made due to historic reasons. In areas left of the Rhine, where Napoleon once implemented the French Code Civil, there are still only “single-profession notaries” everywhere else in Germany, so in right-Rhine areas, only a single person can be a “notar” and a “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).

Other Countries

As a general rule, countries that 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 with the International Union of Notaries (UINL). Its members are:

Europe (34)

Albania, Andorra, Armenia, Austria, Belgium (FR) and Netherlands (NL), Bulgaria, Croatia, Czech Republic, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, the United Kingdom (only the City of London), Luxembourg, Malta, Moldova, Monaco, the 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, and 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, the 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.

Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 13th April, 2024.