Europe: what is a Notary?

The notaries’ mission, which they carry out as delegates of the State that nominates them and accords them the status of public office holder, is to confer authenticity on the legal instruments they establish for their clients. Authenticating an instrument involves gathering together and expressing the wishes of those involved impartially and in full respect of the law. By appending the State’s seal next to the signature of the parties on the instruments they draw up, notaries are responsible for the content and the form.

An authentic instrument has similar value to a judgement and cannot be contested, except by judicial means. Authentic instruments have probative value, which applies to both justice and the administration in addition to all third parties. They are also enforceable, enabling the contracting parties to obtain direct enforcement of their reciprocal obligations before the courts.

The authentication of acts and contracts is a public service, generally subject to the rules of territorial distribution and to price control. Notaries must guarantee the publicity of the authentic instrument to third parties and the State, primarily by registering it on the public registers that exist for this purpose. They are also responsible for its perpetuity as they must keep the original in their archives and issue authentic copies.

Notaries, advisers for families

–

Notaries are legal advisers for families, providing answers to their questions with respect to their estate: home buying, marriage contracts, registered partnerships, donations, wills, succession settlements, etc. Notaries do not only retrospectively settle the property consequences of family events such as divorce, death or an accident leading to a disability. They are also advisers who can be consulted by families at any time, to prepare the transfer of assets or modify the structure of an estate, according to current or future needs. Notaries also have a role, as a trusted third party, in the use of alternative conflict resolution methods such as mediation, conciliation, and in some cases arbitration.

Notaries advising business people

–

In many countries, legislators have endeavoured to make business life as secure as possible, by entrusting notaries with exclusive competence to draw up legal instruments incorporating and modifying companies, in addition to many legal instruments certifying their activity. Notaries help business projects to succeed and thus better protect the company’s shareholders and creditors from the outset. The legal form of the company, the division of powers at its heart and the social and tax status of its directors all affect their family lives and personal estate. The marriage, divorce, fatherhood or motherhood of its directors, not to mention their retirement or death, also has repercussions for the company. Notaries carry out an overall analysis; they are able to find complete congruence between the needs of the company, its durability and the aspirations of its management and workforce.

Notaries in the fight against money laundering

–

Notaries play a central and effective role in the fight against money laundering. They implement recommendations from the Financial Action Task Force (FATF) and the resulting European legislation. In particular, notaries must inform the public authorities if they have suspicions about a financial operation or transaction. In such cases, notaries must maintain a balance between observing professional secrecy and supporting the work of the public authorities.