Notarial document: authentic act
The authentic act is the act received by a public officer having jurisdiction to draw up contracts in the place where said act has been drafted. It differs from the private act signed only by the parties and regularized in any place.
What is an authentic act ?
Certain acts must be established in a notarial form, such as authentic testaments, marriage contracts, deeds of gift and real estate sales for the purposes of land registration . However, in other cases, due to his/her role as guarantor and responsible for the signed act, it is recommended to instruct a notary.
Note: the notarial act is established in a single original called the “minute” which is kept by the notary. Based on this minute, the notary establishes authentic copies of the acts that he/she submits to the parties.
Effects of the authentic deed
- Legal date: the authentic act testifies its date, which simplifies the evidence.
- Probative force: the authentic act testifies of its content concerning the elements identified and verified by the notary. Only a complex procedure may adduce evidence to the contrary (procedure for forgery), equivalent to that of a challenge of a judicial decision for partiality of the judge.
- Enforceability : when a debtor fails to perform his/her pecuniary obligations, the authentic act avoids the need for the creditor to obtain a judgment, if said creditor wishes to sue the debtor for payment of his/her debt, whereas that is compulsory for a deed under private seal . The authentic act is enforceable without further formality, such as a judicial decision.
Role of notaries during the signature of the authentic act
The parties to the act (or their representatives) and the notary are present.
This allows the notary to verify the identity, the powers and capacities of the interested parties. He/she is able to inform the parties on the scope of their commitments, the consequences of the act, and provide all useful explanations. He/she ensures a good balance of the contract and ensures the informed, real and legally valid consent of the parties.
The notary signs the act. The act may not bear the signature of the parties if said parties do not know how to sign or cannot sign. In his quality of public officer and by his/her signature, he/she confers authenticity to the act he/she receives and commits on the identity of the parties, on its content (the formalities reported and the declared will of the parties) and on its date.
Electronic Authentic Act or AAE
Today, the notarial act may be established and signed on an electronic media, provided that both internal and community regulations are met concerning the establishment and the conservation of the act, and provided that a qualified electronic signature is obtained. In these conditions, the act retains all its traditional qualities (legal date, probative force and enforceability ). The Civil Code specifies that in these conditions, “the electronic writing has the same probative force as a writing on paper” (Article 1366 of the French Civil Code).
Notaries have been the first in France to possess an electronic signature tool with a top level of reliability. The first authentic act signed on electronic media was executed in 2008.
Today, more than 70% of acts received by notaries in France are executed in paperless form. The notarial profession develop video conferences on their secure computer network, in order to facilitate remote exchanges.
The authentic act and particularly the electronic authentic act are legal instruments adapted to the needs of our society. Its formalism preserves the quality of individual freedom. Its effectiveness ensures the protection of economic interests. Its transparency allows information to the State.