CIVIL LAW NOTARIES

24 marzo 2018

Both civil and common law countries have notaries, but the roles of civil and common law notaries differ. Common law mainly differs from civil law in that precedents can be drawn from case law, while in civil systems codified rules are applied by judges to the cases before them. In some common law countries, the common law notary public is a qualified, experienced practitioner, trained in the drafting and execution of legal documents. In other common law countries, the notary public is a public servant appointed by a governmental body to witness the signing of important documents (such as deeds and mortgages) and administer oaths.
Known only in civil law jurisdictions, civil law notaries are both members of an autonomous legal profession – although regulated by the law - and qualified public officials, as they are appointed by the State through a selective public contest among Law graduates. By virtue of the law, which stipulates a high level of guidelines and duties, including the obligation of impartiality, civil law notaries must be regarded, in matters of real property (conveyancing), family, inheritance and corporate legal services, as practising non-contentious activities. They act as gatekeepers by drafting, ensuring the legality and certainty of the instruments and the authenticity of signatures presented to them, at a positive end of this legal procedure (putting into effect the “rule of law” principle); providing as well a public fiduciary function by reducing information asymmetries (TTP) as they never represent their clients. They must, indeed, advise both parties fairly. Civil law notaries are obliged by the law not to detach themselves from the core of the relationship, therefore making them responsible for all aspects of the deed. For this reason civil law notaries are assigned functions of a public nature as part of their legal assignments. In civil law jurisdictions, notarial written documents are particular means of evidence, unlike in the common law systems, which are based on the free evidence of witnesses in court: special supreme State powers are devolved to civil law notaries and they can therefore assign “public authority” to each deed they perform. Thereby the civil law notary’s deed has a special effectiveness in a trial, whereby it is a means of peremptory binding evidence; furthermore it is as judicially enforceable as a judgment; if it complies with the law, it can be registered on a public registry. Owing to these characteristics civil law notaries play a different role in comparison to the services provided by other legal practitioners.

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