Civil Law vs Common Law Notaries

In civil law jurisdictions notaries are legal practitioners who have been conferred authority by the state to authenticate acts and provide legal advice to the parties of their rights and obligations under the act. Accordingly, notarial practice is a specialist area of law that requires additional study and experience. In general terms, a civil law notary prepares authentic acts in relation to transactional matters, such as the preparation of wills, the administration of estates, real property transactions and the formation and conduct of businesses.

In comparison, common law notaries are legal practitioners who are qualified to provide notarial certificates that; bear witness to the execution of documents by an individual or a company, declare the exhibition of a document in the presence of the notary, notarise ship’s protest or protest bills of exchange, affirm that copies of certain documents are true and correct copies of their originals, authenticate an annexed document and notarise a power of attorney.

Authentic/ Public Form Acts

Authentic or public form acts are the defining feature of civil law notaries. The authentic act is one that has been drawn up by a competent public officer who is authorised under the law to give authenticity to the act and benefit from the credibility and value of acts of the State. Authentic form acts are comprised of a single narrative instrument written by a notary in the first person and sets out a legal obligation or records a fact or thing. In civil law jurisdictions, such notarial instruments are considered ‘public’ documents and as such are valid and regular, self-authenticating, self-executing, provide probative value as to their contents, are considered public documents and have a fixed, unalterable effective date.

Authentic acts provide full probative value within the jurisdiction in which the notary has licence to practice. It should be noted however, that an authentic act does not have probative value in relation to facts which the parties have declared to the notary without providing evidence and that such parts of the instrument are rebuttable by ordinary means of proof.

Authentic form acts are also given special evidentiary status in which they automatically evidence the facts or statements recorded. While it is possible to challenge the authenticity of such an act, this is not common and involves a lengthy and complex judicial procedure.
Another feature of an authentic form act is that it has executory force, in that an obligation or acknowledgment appearing in an authentic form instrument is enforceable in the same way as a judgement of the court.

The authentic form act is integral to the legal systems of civil law jurisdiction countries. As such, there are precise rules and regulations that govern how civil law notaries conduct their practice and provide services. If these rules and regulations are not observed, it can render the authentic form act null and void. Typically, a civil law notary must read the instrument to the parties, or their legal representatives, explain the applicable law to them and answer any questions that are asked of them in relation to the instrument.

Private Form Acts

In contrast to authentic form acts, private form acts typically do not have a single set definition. Private form acts usually consist of two parts, the first part is a private document which is not prepared by the notary. The second part is the private form act itself, often referred to as a notarial certificate, which the notary prepares, and which is appended to the private document in such a way that its removal would damage both the private document and the notarial certificate. The notarial certificate records the notary’s intervention and evidences the authentication by the notary of one or more aspects of the document to which it relates. This may include, the validity of the document, its legal status, its legal consequences, its execution and the verification of the identity, capacity or authority of the parties executing the document.

As opposed to the authentic form act, the structure and composition of a private form act is not prescribed by any legislative or other authority (although the authentic form act itself has had considerable influence on the structure of the private form act). However, to be valid a notarial certificate must have the name and status of the notary, the place of the act, the date as well as the notary’s signature and seal.

Another difference between the authentic and private acts is that the evidentiary status of the private act is ultimately determined by the law and courts of the country in which it is produced.

Furthermore, there is no one notarial certificate that is appropriate for all circumstances. Each notarial certificate requires a certificate of specific type and style and must convey meaning.