The role of notary
The french notary is a specialist of law with a mission of public authority who prepares contracts under authentic form for the account of his/her clients. He/she carries out his/her functions in a liberal framework.
Definition and status of the French notary
During the debates around the “Act of the 25th of ventôse year XI on the organization of notarial profession”, the Royal Counselor defined the notarial profession in the following terms: “Alongside officials who reconcile and judge disputes, the tranquility calls other officials who, as disinterested counselor of the parties and as impartial editors of their will , inform them of the full extent of the obligations they contract, writing down these commitments with clarity, giving them the character of an authentic act and the force of a judgment as a last resort, perpetuating their memories and maintaining their deposit with fidelity, prevent disputes arising between men of good faith and abduct greedy men with the hope of success the desire to raise an unfair challenge. These disinterested advices, these impartial editors, this type of voluntary judges which irrevocably oblige the contracting parties are the Notaries. This institution is the notarial profession.”
Status of Notaries
This status is still governed by the Order of the 2nd of November 1945 relating to the status of the Notariat and the Decree adopted for its application of the 19th of December 1945 with the all the amendments that have been made. Article 1 establishes that “Notaries are public officers established to receive the acts and contracts to which the parties must or wish to give the authenticity attached to acts of the public authority, and to ensure the date, ensure their conservation, deliver grosses* and expéditions**.”
The notary - a public officer
The notary is a public officer appointed by the Minister of Justice that the State commissions for a public service mission. For the execution of its mission, the State delegates to the notary a part of its public authority: The notary ensures the public service of authenticity. This means that he/she has genuine prerogatives of public power that he/she receives from the State.
The notary - a professionnal for authenticating deeds
He/she has the power to authenticate acts by affixing his/her seal and his/her own signature. The definition of the authentic act is given by article 1369 of the French Civil Code.
How do notaries authenticate an electronic authentic act (AAE)?
Notaires who receives the act identifies himself/herself thanks to the Real Key of the same format as a USB key. This key is personal and allows him/her to authenticate the act as he/she would on paper by signing and affixing his/her seal.
What are the utilities of the authentic deed by comparison with a private deed?
- Notaries note the free and informed consent of the parties. Indeed, the Notary has also a role of legal counsel. He/she therefore protects the consent.
- The act may be published, which makes it opposable to third parties. (Example: publication of the sale)
- The probative force of the act. The notarial act constitutes a proof until a public procedure challenging the authenticity of a document concerning its origin (i.e. the identity of the parties), its content (i.e. concerning the completion of the
it deals with and the declared willingness of the parties), its date.
Note 1: The procedure in writing is a cumbersome procedure which, to avoid mindless disputes, condemns the applicant in forgery to a maximum fine of 10,000.00€ without prejudice to damages that could be claimed.
Note 2: The act signed by electronic means (AAE) has the same legal force as an act on paper. (Article 1316-1 of the Civil Code)
- This act may be imposed with the same legal force as a final judgment. This is the binding force of the notarial act.
For all these reasons, notaries are the magistrate of the amiable, the actor of a justice applied amicably.
Notaries assume the role of conservation of the acts
Notaries must ensure the consultation and conservation for 75 years (100 years for acts relating to a minor), after which the documents will be kept in the archives. How is the electronic authentic act (AAE) kept?
Mandatory use of the notaries
For certain acts, the use of a notary is mandatory, such as a marriage contract, donations between spouses, inter vivos distributions, and for the needs of the land registration , the donation or sale of a property (apartment, house, land).
Note: In France, people who want to conclude a civil solidarity pact (PACS) must, since the 1st of November 2017, register their joint declaration of PACS in addressing:
- Either to the town clerk in the town hall;
- Or to a notary who will advise them, prepare and keep their contract.
The notary: a liberal professional
Although invested of the public authority, the notary exercises his/her functions in a liberal framework, thus ensuring a modern form of public service without cost to the State, since he/she undertakes the economic responsibility of his/her office.
He/she is a liberal professional paid by his/her clients (and not by the taxpayers) according to a tariff set by the State for the services that he/she carries out. (See the sheet on the fee of the french notaire).
The notary: a professional present on the whole territory
Their establishment is subject of a permanent adaptation under the control of the Chancery to ensure a good coverage of the territory.
It obeys to three principles:
- Maintaining a public legal service of proximity;
- Taking account of geographical and demographic developments;
- Ensuring the economic conditions of exercise of the profession to ensure a high quality of service.
Note: As far as the modernization of the profession is concerned, the last 2 reforms should be mentioned:
- Law on pluri-professional operating companies (sociétés pluri-professionnelles d’exploitation or SPE) created by the Ordinance of the 31st of March 2017 (authorized by the Act “growth and activity” of the 6th of August 2015, the so-called “Loi Macron”) which decrees of application have been published. Some SPE with Notaries could therefore be created.
- Article 52 of the same “growth and activity” Act has laid down the principle of free installation of french notaires, bailiffs and judicial auctioneers in areas where the establishment of offices appears useful to strengthen the proximity or supply of services.
Concerning notaries, the decree of the 16th of September 2016 has set 247 areas of free installation in which the creation of 1002 offices is recommended, allowing the establishment of 1650 notaries until 2018. Consequently, new notaries settle slowly (random draw, investigation of preliminary good respectability from public prosecutor's offices before any appointment, etc.)
- Is a notary compulsory in an inheritance partition?
- I buy real estate in the province but I can not, for professional reasons, be present at the signing of the sale. I wish to give proxy to represent me. [...]
- I buy a property for which the mandate of sale provides that the payment of real estate agency commission is the responsibility of the seller. Why is this commission included in the base for calculating notaire fees?