Civil law notary
From Wikipedia, the free encyclopedia
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 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.[2]
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[edit] Difference 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.[1]
[edit] 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 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.
[edit] References
- ^ Pedro A. Malavet, "The Foreign Notarial Legal Services Monopoly: Why Should We Care?" 31 J. Marshall L. Rev. 945, 956-957 (1998).
- ^ Malavet, 957.
