Civil Law Notaries and Law model
Continental law is at the heart of the Romano-Germanic legal system. Today, 88 countries know the notary. In the European Union, notaries are present in 22 of the 28 member states.
The FDC (Civil Law Initiative)
The High Council of the French Notariat is a founding member and director of the FDC (Civil Law Initiative).
The FDC (Civil Law Initiative) is at the origin of the publication of the Index of legal security (ISJ), which assesses the forms of security provided to all economic actors. The Legal Security Index is intended for international economic players, especially investors. It has also launched an International Observatory of Economic Regulations and supports the draft European Code of Business. It organizes every year a great summer university of continental law, as well as the Convention of the Jurists of the Mediterranean which held in 2018 its 9th edition in Tunis.
The High Council of the French Notariat is particularly involved in spreading the virtues of preventive justice around the world, including at the World Bank.
The notary in our law model
In this system, the notary establishes indisputable acts. Legal professional and public officer, the notary is appointed by the State to confer authenticity on the agreements entered into between the parties and to act as an impartial advisor to them. It is based on the law that sets legal frameworks for governing contractual relationships. The proof lies in the pre-eminence of the written word. The law is the main source of law.
The State delegates to a qualified professional, the notary, the mission to ensure the security of the contracts by authenticating the acts he writes.
Formalism is protective of the will of the individual. He guarantees his free consent. The "consumer" of right thus undertakes in full knowledge of the facts.
The impartial advice of a qualified professional, commissioned by the State to authenticate contracts and ensure legal certainty, is protective of those who contract.
The notary in the Anglo-Saxon system
In this system, case law is an essential source of private law. Cases judged by the courts become "precedents" that are required as rules of law unless otherwise provided by law. There is no tradition of codification.
Contracts express the will of the contractors after a confrontation of their respective councils. When there is litigation, the judge decides most often, by reference to the "precedents" likely to apply to the litigious case.
The disadvantages of the Anglo-Saxon system
Contracts are voluminous, because all hypotheses must be considered so as to leave no room for forgetting or bad faith. The conclusion of contractual agreements is more a balance of power between the parties and their councils, than a concern to achieve a balanced and fair solution. The most experienced, the most skilful or the richest is thus the most likely to impose his point of view.
The legal service is designed and treated as a "product" subject to the rules of the economic market imposed on legal professionals. These are therefore naturally led to favor the conquest of new market shares to a goal of balance of the contract and justice. Such conceptions multiply litigation.
Their cost strikes companies' budgets: legal deadlines, fees and often high procedural fees . It also weighs on the insurance companies because of the amounts paid. It is ultimately consumers who suffer the consequences because insurance premiums continue to rise.
The knowledge of the law results from "precedents" to which the courts refer. They are not necessarily the same for all, hence a disparity in judicial solutions