Civil law notary
[1] The most common areas of practice for civil-law notaries are in residential and commercial conveyancing and registration, contract drafting, company formation, successions and estate planning, and powers of attorney.
[2] Ordinarily, they have no authority to appear in court on their client's behalf; their role is limited to drafting, authenticating, and registering certain types of transactional or legal instruments.
Finally, notarial instruments have a fixed effective or signature date (data certa) that cannot be ante- or postdated, or left blank and filled in after signing.
A notarial instrument's “valid” portions are open to direct rebuttal, but the “conclusive” portions can, in some jurisdictions, only be rebutted by an action of improbation (Fr inscription de faux, It querela di falso, Germ Fälschungsklage) in which a challenger must bring a collateral attack against the instrument,[4] proving a willful material error by strong, clear, and positively convincing proof, rather than the ordinary preponderance of evidence standard in civil actions.
If the instrument is prima facie duly executed, courts will enforce it, presume it valid and regular, and admit it as evidence to prove the truth of its contents.
All real estate transactions are now de jure executed by conveyancers (Indonesian: pejabat pembuat akta tanah, lit.
Notarial instruments are legally binding, publicly available, and accorded full faith and credit for any claim until improbated (pubblica fede fino a prova di falso).
They are subject to legal professional privilege and are therefore duty-bound not to betray client confidentiality, thereby giving them the right to withhold information in court as would an attorney or doctor.
Not only are they experts in family, estate, company, and property laws, but they must also stay up-to-date about pertinent cases and certain aspects of tax legislation.
A Quebec notary, or notaire, is a highly specialized lawyer in private practice appointed as a public officer that takes part in the administration of justice.
Thus, although they hold a private practice, depending on the role they professionally exercise they may be acting as public officers (for instance, when working with governmental agencies and departments, or when certifying notarial instruments in a court of law) or as private practitioners (for instance, when paying their own staff's taxes and salaries, or assuming the running costs of their own notarial practice).
In order to become a notary, the candidate has to sit a highly competitive public examination consisting of 4 parts covering all legal and practical aspects of Spanish private law.
As a general rule, countries who formerly were colonies or viceroyalties of Spain, France or Portugal, have retained a civil law tradition and, accordingly, a civil-law notarial profession.
The countries that have asked to join the union are: Georgia, Mauritius, Kazakhstan, Mauritania, Belarus, Bosnia-Herzegovina, Cambodia, Iran, Kyrgyzstan, Laos, Madagascar, New Zealand, the Philippines, Serbia, the Seychelles, South Korea, Tunisia, and Vietnam.
Scribes have existed since recorded history, but the notary's authentication tools were first invented in the Fertile Crescent where in Babylon the use of signatures and distinct signs in clay tablets was required.
Greek city-states lacked uniformity, but, universally, public instruments, usually deeds and conveyances, were kept in official registers and drafted by scribal mnemone (or basiliki ipographi "king's scribes") who were tied to a certain district and whose written acts trumped oral testimony.
In Rome, scribes (scribae) acted as court recorders and copyists of instruments, whereas the notarius took dictation and raw minutes or memoranda (notae) of proceedings in shorthand.
Different kinds of notarius existed: some recorded proceedings, others transcribed state papers, some supplied magistrates with legal forms, and others registered judgements and decrees.
[15] By the Late Roman period, notarius came to denote registrars attached to the courts of provincial governors, secretaries of emperors, and the highest class of officials in the privy council and the imperial chancery.
In a select group of urban areas, such as in northern Italy and southern France, Roman law tended to be preserved, at least for civil matters, and there the secular notarius or tabellio lived on mostly as a scrivener.
The notarius civitatis, or ‘urban notary’, served Lombard kings and nobles in their courts; notarii ecclesiae continued to aid bishops, abbots, and some of the public.
Paul was trained at Pavia, was chancellor to the Lombard king Desierius, taught at the Frankish palace school (782–787), and may have been responsible for reforming the notarial system.
The famous missi dominici oversaw the work of comital (counts') and episcopal notaries, who, under Louis the Pious, were drawn specifically from the noble class.
Still, they remained the highest-ranking lawyer and instrumental to the legal and court process as Germanic-type oral proceedings were unknown and Roman legalistic traditions survived intact.
By the 10th century, secular nomikoi had been organized into a regulatory guild, were attached to the State, appointed by the Emperor, and ranked among the highest of legal officers.
In southern Italy, when Sicily fell to the Arabs it lost the notarial tradition, while other areas, such as Apulia, Calabria, and Lucania, held on to Greco-Byzantine practices.
In addition, the Venetian pillaging of Byzantine libraries revived bookish learning and led to the founding of law schools, such as at the University of Bologna which trained notaries-at-law.
The Italian notarial profession was transmitted from Lombardy to southern France through trade, first to Languedoc, and eventually northward to Bruges (Flemish Belgium), and on to the eastern Mediterranean.
[20] Rather, notaries public only have the power to administer oaths, take affidavits, declarations or depositions from witnesses, acknowledge and attest signatures, and certify copies, usually in conjunction with some legal process.
In Louisiana, Puerto Rico, and Quebec, private law is traditionally based on the French and Spanish civil codes, giving notaries greater legal powers, including the right to prepare wills, conveyances and generally all contracts and instruments in writing.
