The notary is a legal officer with a mission of public authority who prepares contracts in their authentic form on behalf of its clients. It exercises functions within a liberal framework.
Definition of Notary
During the debates of the "law of 25 Ventose year XI, which contains the organization of the notary", the Réal Councilor defined the notary in these terms :" Alongside officials who reconcile and judge disputes, peace calls for other officials, who give disinterested advice to parties, as well as impartial drafters of their will, making them aware of the full extent of the obligations they contract, drafting these commitments through clarity, providing them with the authentic nature of an act and the strength of judgment as a last resort, perpetuating their memory and preserving their filing in a faithful manner, preventing disputes which could take place between men of good faith and get rid of greedy men with the hope for success, the desire to raise an unfair protest. These disinterested counsels, these impartial drafters, such voluntary judges who irrevocably bind the contracting parties, are the notaries. This institution is the profession of notary.".
Status of notary
It is still governed by the ordinance of November 2, 1945 relating to the status of notaries and the decree issued for its application on December 19, 1945 with all the modifications made to the latter. Article 1 provides that "Notaries are public officers, established to receive all acts and contracts to which the parties must or wish to make these authentic, attached to the acts of public authority, and ensure the date, retain the deposit, deliver a Grosse * and Expedition. ** ”.
* Grosse: this is an enforceable copy, which means an authentic copy that bears the enforcement formula, in the same form as the judgments of the courts.
** Expedition: is an authentic copy
*** Minute book: A register containing the minutes of a firm’s notary acts. Today it is considered to be an electronic safe.
Notary: a public officer
It is a public officer, appointed by the Minister of Justice, entrusted by the State with mission of public service. To carry out its mission, the State delegates part of the public authority to the latter: it ensures the public service of authenticity. This means that it has several elements of governmental authority, which it receives from the State.
Notary: professional document authentication
It has the power to authenticate acts by affixing its seal and signature. The definition of an authentic act is given by article 1369 of the Civil Code. How does the notary authenticate the electronic authentic act (AAE)?
What are the uses of the authentic act compared to a private act?
The notary notes the free and informed consent of the parties. The notary also has a legal advisory role. Therefore, it protects consent.
The act can be published which makes it enforceable against third parties. (example: publication of the sale)
This is the probative value of the act. The notarial act is authentic until a false entry in public writing of its origin (i.e., the identity of the parties), its content (i.e., the completion of the and the declared will of the parties), its date.
Note 1: The writing procedure is a tedious procedure which, in order to avoid fanciful disputes, condemns the forger to a fine of a maximum of 10,000 euros without prejudice to the damages that shall be claimed.
Note 2: An electronically signed act (AAE) has exactly the same legal force as an act in hard-copy. (Article 1316-1 of the Civil Code)
This act is asserts itself with the same legal force as a final judgment. This is the enforceability of the notarial act.
For all these reasons, the notary is the amicable magistrate, actor of amicable justice.
The notary has a role of conservation of acts
The notary must ensure consultation and preservation for 75 years (100 years for acts concerning a minor), after which the documents will be placed in the archives. How is the electronic authentic act (AAE) maintained?
Appealing to notary is obligatory
For certain acts, appealing to a notary is compulsory, in cases like marriage contract, donation between spouses, donation-sharing, but also requirements like land registration, donation or sale of real estate (apartment, house, land). Note: In France, people who wish a civil union must, November 1, 2017 onward, register their joint civil union declaration by contacting:
- either the civil registry officer at the town hall,
- or a notary who shall advise the latter, draw up and conserve their contract.
The notary: a liberal professional
Although vested with public authority, the notary exercises his functions in a liberal context, therefore it is a modern form of public service which doesn’t cost the state, since it assumes the economic liability of its examination.
It is a liberal professional, paid by its clients (and not by taxpayers) at a rate which is set by the state for the service it provides. Read the document on the notary's tariff.
The notary: a professional present throughout the territory
Their location is subject to permanent adaptation under the control of the Ministry of Justice, in order to ensure proper coverage of the territory. Access the press release on the map of the facilities of future notaries.
It complies with 3 principles:
1.To maintain a local legal public service,
2.Take into account geographic and demographic developments,
3. Ensure the economic conditions to exercise the profession in order to ensure a quality service.
Note: in terms of the profession’s modernization, the last 2 reforms should be mentioned:
The law on multi-professional operating companies (SPE) created by the ordinance dated March 31, 2016 (authorized by the “growth and activity” law of August 6, 2015 known as the “Macron law”), the implementing decrees of which have been published. SPEs with notaries may see the light of day.
Article 52 of this same “growth and activity” law established the principle of the free installation of notaries, bailiffs, and judicial auctioneers in areas where the establishment of offices appears useful to strengthen proximity or provision of services.
In terms of notaries, the decree dates September 16, 2016 specified 247 zones of free installation in which the creation of 1002 offices is recommended, that allows establishing 1,650 notaries by 2018. New notaries are slowly settling down (ballots, preliminary investigation of the prosecution before any nomination, etc.)