Notary public
A notary public or notary is a public official who authenticates documents. The office dates back to Roman times. The powers and qualifications of the position vary by jurisdiction, the powers of United States notaries generally being more limited than those in other countries, where notaries are usually licensed attorneys. Significantly, notaries—unlike attorneys—have a duty to the transaction as a whole not to one party or the other, ensuring that it is carried out in honesty and truthfulness.
Definition
A notary public is an officer who can administer oaths and statutory declarations, witness and authenticate documents, and perform certain other acts varying from jurisdiction to jurisdiction. Generally speaking, a notary public in the United States has powers that are far more limited than the role of a civil law notary in the rest of the world, with the exception of Louisiana. For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarized before they can be used or officially recorded or before they can have any legal effect.
History
Notaries public hold an office which can trace its origins back to ancient Rome. They are the oldest continuing branch of the legal profession and exist throughout the whole of the world.
The history of notaries public has its origins in the civil institutions of ancient Rome and served as a learned profession of prominence in private and public affairs. Notaries employed within the Roman Republic also coined a type of shorthand within the empire which substituted for words of common use in formal and informal transcriptions. Writers who adopted this method were termed notarius and were responsible for the recording of shorthand statements and later transcriptions of such materials into formal memoranda.
The position of notary public remained a figure of importance throughout many parts of continental Europe and was maintained throughout the Dark Ages and Italian Renaissance as a central institution of law. This position remains to date within many countries that derive their legal systems from bodies of civil law.
Notaries were not introduced to the United Kingdom until the late thirteenth and fourteenth centuries as the legal system within Great Britain was derived from common law. When first introduced, English notaries were appointed by the Papal Legate and were often members of the clergy. In time, clergymen would refrain from participation within secular businesses and the position of notary public was often assumed by laymen. In 1533, the Papal Legate was abolished and the king was given the authority to appoint notary positions.
Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.
Qualifications
In some countries and states, notaries are required to undergo specific training in the performance of their duties. Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. Even licensed lawyers must go through additional training and apprenticeship, in some countries, before being allowed to practice the profession of a notary. Unlike most countries, the majority of those commissioned as a notary public in the United States of America are not licensed attorneys-at-law admitted to the bar. Some countries consider the profession of a civil law notary, itself, to be the practice of law. Many even have institutes of higher education issuing degrees in the field. In the United Kingdom, for example, a notary public can perform any task a solicitor or other lawyer can perform, in addition to their notary public duties, with the sole exception of representing others before the courts, unless they are also licensed as a barrister.
Notarization Procedures
Notarization requires that the notary first screen the signer. This involves reviewing identity cards (such as a driver's license) or testimony from one or more credible identifying witnesses; the signer is responsible for bringing the necessary identification or witnesses. Once the screening is finished, the notary must complete the notarial act and record the action in a journal. California anti-fraud law requires a thumbprint in the journal entry for certain types of transactions. Documents with blank spaces cannot be notarized, a further anti-fraud measure.
Primary Notarizations
Two types of primary notarizations are "acknowledgements" and "jurats."
An acknowledgement is an attestation by a notary that a person proved to the notary's satisfaction their identity and signed the document in question within the notary's presence. States vary in the specific requirements for identification and whether it is necessary that the person need actually sign the document in the presence of the notary. Acknowledgments can be executed on deeds, documents affecting property, and the like. The signed statement by the notary proves that the signer personally appeared before the notary, is personally known or was positively identified by the notary, and acknowledged having signed the document.
A jurat is the official written statement by a notary public that he or she has administered and witnessed an affirmation on an affidavit, and that the person has sworn to or affirmed the truth of information contained in a document under penalty of perjury. A jurat certifies that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary (3) signed the document in the presence of the notary, and (4) took an oath or affirmation administered by the notary. The oath or affirmation is designed to compel truthfulness in a signer, through fear of the law or of God.
Notary Publics and Lawyers
There are three significant differences between notaries and other lawyers.
Firstly, the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties within a transaction as long as there is no conflict between the parties. In such cases it is the duty of the notary to ensure that the transaction they conclude is fair to both sides.
Secondly, a notary identifies himself or herself on documents by the use of his or her individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the genuineness of a document.
Thirdly, a notary will often need to place and complete a special clause or attach a special certificate, known as an "eschatocol," on or to a document in order to make it valid for use overseas. The exact wording of the eschatocol is not fixed and will vary depending on the nature of the notarial act.
Below is an example of an eschatocol used in the verification of a signature by a South Australian notary:
| TO ALL TO WHOM these presents shall come I, (FULL NAME OF NOTARY), Notary Public, duly authorised and practising at (city) in the State of South Australia of the Commonwealth of Australia and who remains a Notary Public for so long as my name appears upon the Roll of Public Notaries kept by the Registrar of the Supreme Court of South Australia pursuant to Section 92 of the Legal Practitioners Act 1981 (SA) SEND GREETINGS and DO HEREBY ATTEST AND CERTIFY that the document or documents hereunto annexed was or were freely and voluntarily signed and executed in my presence this day by the person or persons named therein who is or are personally known to me or who was or were identified to me to my satisfaction and who personally appeared before me and who appeared to understand the meaning and effect of the said document or documents.
IN FAITH AND TESTIMONY whereof I the said Notary have hereunto subscribed my name and affixed my seal at (city) aforesaid this (day) of (month) (year). (Signature) (Seal)
(Full Name of Notary) Notary Public |
Common Law Jurisdictions
A notary, in almost all common law jurisdictions, is a qualified, experienced practitioner trained in the drafting and execution of legal documents. Notaries often record matters of judicial importance as well as private transactions or events where an authenticated record or document is required. The functions of notaries include the preparation of certain types of documents including international contracts, deeds, wills and powers of attorney, and the certification of due execution, the administering of oaths, witnessing affidavits, statutory declarations, and more.
Significant weight is attached to documents that are certified by notaries. These documents are sealed with the notary's seal or stamp and are recorded by the notary in a register maintained and permanently kept by the notary. These are known as "notarial acts." In countries subscribing to the Hague Convention, which abolished the requirement for legalization of foreign public documents, only one further act of certification is required termed an "apostille," a certification issued by a government department. For other countries an "authentication" or "legalization" must be issued by the foreign affairs ministry of the country from which the document is being sent or the embassy, consulate-general or High Commission of the country to which it is being sent.
England
In England there are several classes of notaries. Nearly all of them are solicitors who additionally work as notaries. A second class includes scrivener notaries, who get their name from the Scriveners' Company, and were the only notaries permitted to practice in the City of London until 1999.
Other notaries in England include ecclesiastical notaries, whose functions are limited to the affairs of the Church of England, and non-legally qualified persons who satisfy the master of the faculties of the Archbishop of Canterbury that they possess an adequate understanding of the law. Members of this class are required to pass examinations set by the master of faculties. The regulation of notaries was modernized in the 1990s as a result of England’s Courts and Legal Services Act 1990, section 57.
Within the United Kingdom, a notary public can perform any task a solicitor or other lawyer can perform, in addition to their notary public duties, with the sole exception of representing others before the courts, unless they are also licensed as a barrister.
Australia
In most Australian states and territories, the exception being Queensland, notary publics are appointed by the Australian Supreme Court of the relevant state or territory. Few notaries have been appointed as such for more than one state or territory. Queensland, like New Zealand, persists with the original practice of appointment by the Archbishop of Canterbury acting through the master of the faculties.
Australian notaries, unlike those of the United States, do not hold "commissions" that can expire. Once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. Virtually all Australian notaries are lawyers of several years standing, though very few lawyers are also notaries.
All Australian jurisdictions also have justices of the peace or commissioners for affidavits who can witness statutory declarations and certify documents if the document is to be used only in Australia. Almost all Australian lawyers are also commissioners for affidavits. Justices of the peace are often laypersons who have minimal training but are of proven good character.
In few Australian jurisdictions, justices of the peace may also be minor judicial officers, responsible for issuing certain warrants and handling minor court processes such as after hours bail. Justices of the peace are not permitted to charge for their services. In the United States, the responsibilities and qualifications of notaries public resemble much more of an Australian justice of the peace, rather than an Australian notary.
United States
Unlike most countries, the majority of those commissioned as a notary public in the United States are not licensed attorneys-at-law admitted to the bar. Generally speaking, a U.S. notary public is a person appointed by a state government to serve the public as an impartial witness. Since the notary is a state officer, whether the jurisdiction is common law or civil law is determined on a state-by-state basis; Louisiana is the only civil law state within the United States.
In most states, only qualified candidates can apply for such an appointment, termed a commission. Qualifications vary from state to state, though statutes often bar people from being appointed if holding certain types of criminal convictions, or are below a certain age. All applicants must pass some type of examination regarding notary practices and law to be considered as a candidate. Attorneys at law admitted to practice in New York may become notaries simply by filing the application and fee, without further examination.
Upon receiving notice of their passing the examination, new notaries must go in person to their county clerk, take an oath of office, file a signature card, and receive from the clerk their commission and identification card. They are then said to be "qualified" in that county: though a notary may act anywhere within the state, their official records are kept within counties. Though qualified in only one county, and though able to act in any county, notaries may at their option file "certificates of official character" in counties where they regularly do business merely for the convenience of verifying local acts.
County clerks can authenticate the signature of a notary on a document provided to them, and provide a certificate attesting to this. Every county clerk (who may himself witness documents) must have a notary public available in his office for free service to the public at all times.
Notaries in the United States are much less closely regulated than notaries in civil law jurisdictions or in most other common law countries, typically because U.S. notaries have less authority. In the United States, a non-attorney notary may not offer legal advice or prepare documents (with the exception of Louisiana) and cannot recommend what type of notarization may be necessary. In many cases, a notary cannot authenticate a copy of a document. The most common of notarial acts in the United States are the taking of acknowledgements and oaths. All acts of a notary public must include a venue, or official listing of the place where authenticated, usually in the form of the state and county. The National Notary Association estimates the United States has more than 4.5 million notaries public nationwide.
Civil Law Jurisdictions
The role undertaken by notaries in civil law systems is much greater than in common law countries. Notaries under civil law frequently undertake work done in common law countries by titled officers and other government agencies. The qualifications of notary publics imposed by civil law countries are much greater. In Greece, for example, a practitioner must choose to be either a solicitor or a notary, but cannot act as both.
Notaries of civil law receive a legal education similar to the education received by barristers of the United Kingdom. Civil law notaries participate in areas of private law and often litigate controversy between two individuals or private parties, involving minimal if any intervention by the state. The most common areas in which civil law notaries practice are property transfers, the drafting of private contracts, commercial transactions and other property right litigations. Civil law notaries are without the authority to appear before courts on behalf of individuals or private parties.
Germany
In Germany, the civil law notary plays an important role in contractual agreements relating to special laws such as property laws, land charge certifications, laws of succession, family law, and corporate law. In Germany, a notary is very important to daily business. All transactions must be signed and sealed at the office of the notary public.
The Notar has legal training equivalent to the training of a solicitor. The notary is appointed by the state government and is authorized to certify deeds. He or she provides independent and impartial advice to contractual parties. Depending on the state, German notaries officiate either as a single-profession notary, his or her only profession being a civil law notary, or as both solicitor and notary.
The notary drafts the deeds in accordance with German law and provides legal advice regarding a contract. He will read aloud the deed in front of all parties involved. The deed is signed by all parties, sealed by the notary and is irrevocable.
ReferencesISBN links support NWE through referral fees
- The American Heritage Dictionary of the English Language, Fourth Edition. 2004, 2000 by Houghton Mifflin Company.
- Dictionary of Real Estate Terms. 2004. Barron's Educational Series, Inc.
- West's Encyclopedia of American Law. 1998. The Gale Group, Inc.
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