THE NOTARY - A PUBLIC OFFICE HOLDER
Notaries are an integral part of the legal order in the 22 EU Member States based on Latin civil law.
They are one of the three pillars of the legal order (magistrates, notaries, lawyers). Their essential mission, that they carry out as delegates of the State that nominates them and accords them the status of public office holder, is to confer authenticity on the legal instruments and contracts they establish for their clients in areas of law as diverse as marriage contracts, company statutes, wills, real estate transactions, etc.
Authentic instruments: a guarantee of legal certainty
Having in many respects the same value as a judgement, authentic instruments cannot be contested, except through judicial proceedings.
Unlike private agreements, they are endowed with greater probative value and are imposed on the courts, the administration and third parties.
Like judicial decisions, they are enforceable, enabling the contracting parties to have their obligations enforced directly by the implementing bodies (judicial officers), without having to pass before the courts. By placing the State's seal next to the signatures of the parties on the instruments they draw up, notaries are responsible for the content and the form.
They ensure that the authentication process has been respected perfectly.
The authenticated instrument expresses the wishes of its signatories, their correct identity and the date and substance of their commitments.
The notary: an amicable settlement magistrate
The authentic instrument is the fruit of a complex undertaking during which the notary has a particular duty to inform and advise his or her clients on the legal, financial and tax consequences of their project and on the legal instruments best able to implement it.
The notary must carry out this duty whilst refuting any improper, unfair, illegal or immoral commitments. For the notary, authenticating an instrument involves gathering together and expressing the wishes of those involved completely, impartially and in full respect of the law.
This is why notaries are thought of as amicable settlement magistrates, practising preventive justice.
The notary: a professional at the service of all citizens
The status and organisation of the notarial profession guarantee that notaries provide quality local justice, accessible to all.
The authentication of instruments and contracts is a public service, generally subject to rules of geographical distribution and to price controls. Furthermore, notaries are obliged to act; they cannot refuse to offer their services to anyone requesting them, even though citizens can choose a notary freely.
Finally, notaries must guarantee the publicity of the authentic instrument to third parties and the State, primarily by registering it on the public registers that exist for this purpose.
They are also responsible for its perpetuity as they must keep the original in their archives indefinitely and issue authentic copies. In this regard, the use of information technologies offers notaries and their clients practical solutions that are ever more effective, whilst guaranteeing the very highest legal certainty.