Why do you need a notary?
(freely adapted from www.notariato.it)
The Latin Notary: the Civil Law "title insurance"
The Notary as existing in Italy belongs to the “latin (o roman) notarial system”.
The “latin notary” system is largely spread around the world, adopted by approximately 71 countries, mostly belonging to the civil law system.
Although the same word “public notary” is used within the “common law” legal systems, it must be underlined very clearly from the beginning that the concept (the meaning) behind the word in the civil law system and in the common law system is completely, absolutely different.
So when the words "Latin Notary" are used, it is necessary to forget every notion that links it to the anglo-american “public notary”.
The roots of the modern latin notary system, are to be found in the values of humanism, of the search of justice and protection of the weakest subjects.
Through this system, by using the notaries as qualified legal professionals, the State wants to guarantee certainty in the legal trading and commercial exchanges and protection of individuals.
The presence of a professional with the role of the Latin Notary within the civil law systems is based on two reasons:
1) the civil law system privileges the written evidence. This means of course that the reliability of what is written in a document has the utmost importance;
2) the civil law system stands upon a variety of public registers where almost all, and all the most relevant deeds and legal situations are entered to make them "public". This means that they can be accessed by anybody and the data recorded in them are deemed to be legally true and trustworthy. Clearly the reliability of their records depends entirely upon the trustworthiness of the deeds entered.
Who is a Latin notary
In civil law jurisdictions, the notary:
1) is a lawyer;
2) is also a "public officer" who performs public functions;
3) is a specialized lawyer who draws "authentic deeds";
4) is a professional who is compelled to keep the original deeds in legal custody, as a public records office;
5) is a multi-party counselor, with a specific, traditional "anti-trial" role.
The Latin Notary as a lawyer
Latin notaries (at least in Europe) have a law degree.
They may or may not have passed the bar examination. In Italy, however, they are not allowed to practice both legal professions at the same time.
To be allowed to practice the notarial profession, they must get through a very rigorous and competitive examination and, unlike the solicitors, their number is fixed by the law.
In most civil law countries, the Latin notary is compelled to avail his services to whoever asks for them, unless special impediments excuse him, and so long as the notarial document he is asked to draw is lawful.
The notary as a "public officer"
A "public officer" is a professional who performs "public functions".
This means that he is vested by the State with public authority and faith, which allows him to draw "authentic deeds" (or "public deeds").
The “authentic deed” is the characteristic "product" of the latin notary system. Even though the notaries' discipline can show slight differences in the different countries adopting the latin system, they all draw up authentic (public) deeds with the same legal meaning.
Authenticity means legal security and reliability of legal documents: these are considered essential goals in our constitutional state, because they can very efficiently
- prevent disputes and lawsuits,
- protect commerce from forgeries and
- avoid damages to the parties involved.
This means that the notary generally performs what has been mentioned as an "anti-trial" function, which is becoming cost-saving for society as a whole because of the increasing costs of the judicial system.
From this point of view, a notary can be defined as a public officer to whom the State delegates a specific public power, the power to assert (to affirm) the authenticity of a document.
His deeds must prevent - as much as possible - future lawsuits.
Where does the "need" of an "authentic deed" come from?
Only legal security in business and private relationships allows for economic development; therefore a constitutional state must guarantee legal security to its citizens.
For this goal:
1) lawsuits must be prevented, for as much as possible;
2) the citizens must have access to public registers whose records are reliable and legally trustworthy.
Clearly the reliability of the findings depends entirely upon the trustworthiness of the deeds entered.
The second main function assigned to a latin notary is meant to guarantee the achievement of the desired results.
To summarize:
the latin notary is a public officer and a specialized counselor; his expertise must include: estate contracts, loans and mortgages, company law, family law, wills law, the relevant sections of fiscal law. He also performs other judicial duties as a judicial auxiliary/assistant.
In recent years he has also achieved an important role in the field of international private law.
