The preparation of notarial deeds

A general overview

The civil law notary in continental jurisdictions is always a legal professional holding a law degree, and apart from authentications is also engaged in preparing instruments which provide attestations and incorporate transactions. Due to the notary’s legal status, his instruments are deemed authentic public deeds. The preparation of notarial deeds are governed by law which if not complied with in any way the instrument in question may lose its public deed nature and even result in the invalidity of the transaction incorporated therein. The process of preparing an authentic instrument is non-contentious procedure. It may be considered atypical as it is not closed by a decree but by the instrument itself. Clients submit a request to the notary for the drawing up of a notarial deed. The notary is under an obligation to prepare the deed without any discretion, and may only decline to do so if the intent of the parties is unlawful, or purports to bypass the law. The notary has to issue a decree on the rejection of such request which may be appealed against before the relevant regional court. The executed deed may be corrected in the case of some clerical errors upon the request of the parties by the notary issuing the decree. Parties have a right of appeal against the decree.

Notarial deeds

The notarial deed certifies the expressed intent relating to the legal transaction at issue with authenticity, thus the notary apart from a thorough verification of personal identity, becomes aware of the intentions of the parties, or in case of a unilateral declaration of the party concerned and prepares the public deed accordingly. The notarial deed must be read out and explained to the client at all events.

When reading out the deed the notary may ask for the assistance of auxiliaries, such as interpreters, or persons using sign language. Personal participation when reading out is an indispensable element in preparing deeds. If a commitment undertaken in the form of a notarial deed complies with the requirements set out in Section 23/A of the Enforcement Act such commitment may be enforced directly without any court proceeding as such authentic instrument has the same effect as a court judgement.

Notarial certificates

Attestations in the form of notarial deeds provide authentic proof of facts having legal relevance by way of records drawn up or an authentication clause attached to it. The notary describes facts that have occurred in his presence in such a notarial deed. The attestation need not comply with the intentions of the parties, because its accuracy and trustworthiness lies in the very fact that it may contain disadvantageous or adverse pieces of information for the party having initiated the procedure. The significance of attestations rests on their qualified probative force. Attestations are twofold: they may be drawn up in minutes or they may testify by a notarial clause.

Attestations drawn up in a record

Attestations drawn up in a record are the original forms of attestations, which resemble court records as to formalities. All attestations must be made in the form of records unless the law specifically provides for certificates in clause form. Attestations by way of minutes are extremely widespread. Such classical forms of attestations are the ones on the communication of declarations or certification of delivery, meetings and resolutions, protests of promissory notes, cheques, or other securities, mystery shopping, some form of performance or the lack thereof, and draws, where public opinion considers the presence of a notary as a guarantee of fair procedure.

The authentication clause

The Notaries Act specifies which type of attestations may be made by attaching a notarial clause to them. This goes back to historical reasons, as half a century ago such types were also made in the form of records, but due to their volume and identical structure they were simplified to certifying clauses.

Attestations by way of an authentication clause may be made on the following:

a) that thephotocopy of a document is true and faithful to the original as presented to the notary,

b) that a translation is accurate,

c) that a signature or initial is authentic,

d) the date of presenting an instrument,

e) the content of an authentic public register.

Apart from the aforementioned types the notary may not issue an attestation by way of a notarial clause.

Other non-contentious procedures

All procedures conducted by notaries whilst exercising public authority are non-contentious. A notarial procedure or decision - pursuant to the Notaries Act § 172 (1) inter alia - is equivalent in effect to a judicial procedure or decision, thus an appeal may be lodged with the relevant regional court against the decision of a notary. The procedures listed below may be labelled as classical non-contentious procedures as they are initiated upon request or ex officio, and are concluded by a decree at all events which may be appealed against.