In civil law jurisdictions, the notary:
1) is a lawyer;
2) is also a "public officer" who performs public functions;
3) is a specialized lawyer who draws "authentic deeds";
4) is a professional who is compelled to keep the original deeds in legal custody, as a public records office;
5) is a multi-party counselor, with a specific, traditional "anti-trial" role.
The Latin Notary as a lawyer
Latin notaries (at least in Eur
openope) have a law degree.
They may or may not have passed the bar examination. In Italy, however, they are not allowed to practice both legal professions at the same time.
To be allowed to practice the notarial profession, they must get through a very rigorous and competitive examination and, unlike the solicitors, their number is fixed by the law.
In most civil law countries, the Latin notary is compelled to avail his services to whoever asks for them, unless special impediments excuse him, and so long as the notarial document he is asked to draw is lawful.
The notary as a "public officer"
A "public officer" is a professional who performs "public functions".
This means that he is vested by the State with public authority and faith, which allows him to draw "authentic deeds" (or "public deeds").
The “authentic deed” is the characteristic "product" of the latin notary system. Even though the notaries' discipline can show slight differences in the different countries adopting the latin system, they all draw up authentic (public) deeds with the same legal meaning.
Authenticity means legal security and reliability of legal documents: these are considered essential goals in our constitutional state, because they can very efficiently
- prevent disputes and lawsuits,
- protect commerce from forgeries and
- avoid damages to the parties involved.
This means that the notary generally performs what has been I has been mentioned as an "anti-trial" function, which is becoming cost-saving for the society as a whole because of the increasing costs of he judicial system.
From this point of view, a notary can be defined as a public officer to whom the State delegates a specific public power, the power to assert (to affirm) the authenticity of a document.
The official State seal used by the notary bears witness of this privileged strength
"Public officer", however, does not mean that he is in any way dependent from any branch of government.
It just means that he is empowered to draw "authentic deeds" (in the meaning and content which we will see) by the State itself.
It means, in other words, that he can give his own deeds a legal certainty only because the State has empowered him to this function.
For this reason, he is also subject to a strict public control.
Having been delegated the "authenticity" public function, the Latin Notary has a specific, legally binding duty to:
- check out the conformity with the law provisions of the agreements the parties ask him to notarize;
- explain to the parties the legal consequences and effects of their contracts and statements, also from a fiscal point of view, pointing out the possible risks;
- be absolutely neutral and impartial.
He is not the customers' notary, but the State's Law’s notary.
The relationship between him and his customer cannot affect his professional duty to draw only perfectly lawful deeds, in the combined interest of both parties.
As a "public officer" and therefore an impartial professional, the Latin Notary has a strong "anti-trial" function.
His deeds must prevent - as much as possible - future lawsuits.
The Latin Notary "authentic deed"
As said before, an "authentic" or "public" deed is a legally reliable instrument, whose trustworthiness is guaranteed by the Latin Notary who executed it.
Where does the "need" of an "authentic deed" come from?
Only legal security in business and private relationships allow for economic development; therefore a constitutional state must guarantee legal security to its citizens.
To this goal:
1) lawsuits must be prevented, for as much as possible;
2) the citizens must have access to public registers whose records are reliable and legally trustworthy.
Clearly the reliability of the findings depends entirely upon the trustworthiness of the deeds entered.
(from the official website of the Italian Civil Law Notaries www.notariato.it)
