The role of the french notaire

During the debates around the “Act of the 25th of ventôse year XI on the organization of the French Notariat”, the Royal Counselor defined the Notariat 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 Notariat.”

Status of the French Notaire

This status is still governed by the Order of the 2^nd of November 1945 relating to the status of the Notariat and the Decree adopted for its application of the 19^th of December 1945 with the all the amendments that have been made. Article 1 establishes that “French Notaires 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**.”

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 does the french notaire authenticate the electronic authentic act (AAE)?

The french notaire 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?

1. The french notaire notes the free and informed consent of the parties. Indeed, the Notary has also a role of legal counsel. He/she therefore protects the consent.
2. The act may be published, which makes it opposable to third parties. (Example: publication of the sale)
3. 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 formalities 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)
4. 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, the french notaire is the magistrate of the amiable, the actor of a justice applied amicably.

The french notaire assumes the role of conservation of the acts

The french notaire 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 french notaire

For certain acts, the use of a french notaire 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 1^st 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.

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 the french notaires, the decree of the 16th of September 2016 has set 247 areas of free installation in which the creation of 1002 notary offices is recommended, allowing the establishment of 1650 french notaires until 2018. Consequently, new french notaires settle slowly (random draw, investigation of preliminary good respectability from public prosecutor's offices before any appointment, etc.)