The authentic act is an act which is received by a competent public officer to instrument it in the place where it was drawn up. It is different from the private act which is signed only by the parties and can be regulated anywhere.
Definition of the notary's authentic act
Certain acts must be drawn up in notarial form, such as authentic wills, marriage contracts, deeds of donation and real estate sales for the purposes of land registration. However, in other cases, because of the role as guarantor and responsible for the signed act, it is recommended to call upon a notary.
Note: the notarial act is drawn up in a single original known as the "minute", and which is preserved by the notary. Through this minute, the notary makes authentic copies of the acts that is given to the parties.
The effects of an authentic act
A certain date: the authentic act is a complete proof of its date, which simplifies proof.
The probative value: the authentic act is proof of its content, in regard to the elements which have been noted and verified by the notary. Evidence to the contrary can only be brought forward via a complex procedure, which means contesting a judicial decision for partiality of the judge.
Force and effect: when the debtor does not carry out his pecuniary obligations, the authentic act avoids the creditor having to obtain a judgment, if he wishes to sue the latter in payment of his debt, while this is key for the act under signature private. The authentic instrument is automatically enforceable, like a judicial decision.
The authentic instrument, a legal instrument adapted to the needs of our society.
Its formalism preserves individual freedom. Its effectiveness ensures the protection of economic interests. Its transparency allows the State to be informed.
Do legal acts in the authentic form guarantee security?
Yes. Madam TAUBIRA, former Minister in charge and Keeper of the Seals objectively recalled that the rate of judicialization of agreements in Anglo-Saxon countries was 1 to 3, while the one of notarial acts in France is 1 in 1070.
Through the security it provides, it is an instrument of legal freedom, because it protects the weak against the strong, the consumer against the professional. Therefore, there is no need for multiplication of protective texts. The mode of proof is a particularly effective instrument for electronic contracts.
The notary’s role while signing the authentic act
The parties of the act (or their representatives) and the notary are present.
This way, the notary can verify the identity, capacity, and powers of the interested parties. It is able to enlighten the parties on the extent of their commitments, the consequences of the act, and give them any useful explanations. The notary ensures the proper balance of the contract and makes sure that the valid consent of the parties is legal.
The notary signs the act. The act may not bear the signature of the parties when they do not know or cannot sign. Through their capacity as a public officer, the latter confers, by its signature, the authenticity of the document he shall receive and commits to the identity of the parties, content (the related formalities and the declared will of the parties) and its date.
Electronic Authentic Act or AAE
The notarial act can now be drawn up and signed electronically, subject to compliance with both internal and community regulations attached to the establishment, conservation of the act and obtaining a qualified electronic signature. Under these conditions, it retains all its traditional qualities (certain date, probative force, and enforceable force). The Civil Code specifies the latter under these conditions, "electronic writing has the same probative force as writing on paper" (Article 1366 Civil Code).
Notaries were the first in France to come up with an electronic signature tool with a maximum level of reliability. The first authentic act in electronic format was signed in 2008.
How the notary authenticates the electronic authentic instrument (AAE)?
The notary who receives the act identifies himself using the Real key, the same format as a USB key. This belongs to them and allows to authenticate the act just like on paper, by signing and affixing his seal.
What about the electronic authentic instrument? (AAE)?
The customer leaves with a paper certificate of the act of sale but also with a traditional signature. A copy of the electronic bill of sale can also be sent to him. Last but not least, he can also possess a dematerialized version if he wishes, that he can keep on his computer and send if need be, to his bank, to his insurance company.
How is the electronic authentic instrument maintained (AAE)?
After the signing ceremony has been completed, the act is recorded, encrypted, and sent via the network of the notary to the Central Electronic Timer of the Notary (MICEN) to which only the signing notary has access. Through this space, it can retrieve the act and its annexes at any given time and issue copies. Nearly 2 million electronic records are already maintained there.