Fundamental principles of the Latin type notarial system
Notaries and their function
Notaries are professional lawyers and public officials appointed by the State to confer authenticity on legal deeds and contracts contained in documents drafted by them and to advise persons who call upon their services.
Notarial services encompass all judicial activities in non-contentious matters, affording legal certainty to clients, thus averting disputes and litigation.
When notarised deeds are drawn up, Notaries are obliged to have constant regard for the law in interpreting the wishes of the parties concerned and ensuring that they conform to the law. They have to verify the identities of the parties involved, as well as their status and authority to conclude the particular deed or transaction in question. They monitor its legality, whilst at the same time ensuring that the intentions of the parties stated in their presence are freely expressed, irrespective of the medium used for the notarised deed.
Notaries have sole responsibility for their own draftsmanship. They are free to accept or reject any proposal submitted to them and to make any amendments that they deem suitable by agreement with the parties.
Parties to a notarised deed are entitled to copies of the original kept by the Notary. Authenticated copies have the same standing as an original. Notaries can issue ordinary copies to persons who, under national law, have a legitimate interest in ascertaining their content.
Notarised deeds enjoy the benefit of dual presumption of legality and accuracy of content; they may be contested only through judicial channels. They are enforceable instruments with conclusive force.
Notarised deeds that meet the aforementioned standards should be recognised in all States and should have the same conclusive force, be enforceable in the same way and create the same rights and obligations as in their country of origin.
The national law determines each Notary's field of competence and the number of Notaries sufficient to properly discharge their duties, thereby ensuring their fair distribution throughout the country.
Notaries must be members of a collegiate body. A single organisation consisting exclusively of Notaries represents the whole body of Notaries in every country.
The law in each State determines the qualifications needed and the conditions governing access to the profession of Notary, establishing the examinations, tests and training periods deemed necessary.
The law of each State determines the disciplinary code that applies to Notaries, who are to be under the constant supervision of their public authorities and collegiate bodies.
Owing to the public nature of the office they hold, notaries have a duty to act in good faith and with integrity towards those who request their services, the State and their colleagues.
To achieve the balance needed in order to conclude a contract on an equal footing, a Notary's impartiality can also take the form of lending adequate assistance to whichever of the parties might be in a position of inferiority.
Choice of Notary is a matter for the parties alone.
Notaries are bound by the ethical rules of their profession at both national and international level.