Civil law notary

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Civil-law notaries (or Latin notaries) are specialized lawyers acting as public officers with jurisdiction over voluntary, i.e., non-contentious, private law. Unlike notary publics, their common-law counterparts, they are able to provide legal advice and prepare instruments with legal effect. They often receive the same education as advocates at civil law, trial lawyers, or any professional litigator but without qualifications in advocacy and the law of evidence, analogous to solicitors and attorneys in common-law countries.

Civil-law notaries are limited to areas of private law, that is, domestic law which regulates the relationships between individuals and in which the State is not directly concerned.^[1] The most common areas of practice for civil-law notaries are in residential and commercial conveyancing and registration, contract drafting, business engagements, transactions, successions and estate planning, and powers of attorney.^[2] Ordinarily, they have no authority to appear in court on their client's behalf; their role is limited to drafting, authenticating, and registering certain types of transactional or legal instruments. In some countries, such as the Netherlands, France or Italy, they also retain and keep a minute copy of property records - in the form of memoranda - in notarial protocols, or archives.

Notaries generally hold undergraduate degrees in civil law and graduate degrees in notarial law. Notarial law involves expertise in a broad spectrum of private law including family law, estate and testamentary law, property law, the law of agency, and contract and business law. Student notaries must complete a long apprenticeship or articled clerkship as a trainee notary and usually spend some years as a junior associate in a notarial firm before working as a partner or opening a private practice. Any such practice is usually tightly regulated, and most countries parcel out areas into notarial districts with a set number of notary positions. This has the effect of making notarial appointments very limited.

Contents 1 Notarial acts at Civil law 1.1 Drafting phases 1.2 Status at law 2 Distinction from Notaries public 3 Netherlands 4 France 4.1 Education 4.2 Practice 4.3 Fees 4.4 Professional organizations 5 Germany 6 Other Countries 6.1 The International Union of Notaries 7 History 7.1 Origins 7.2 Roman Empire 7.3 Early Middle Ages 7.4 Byzantine Europe 7.5 Late Middle Ages 8 See also 8.1 British Commonwealth 9 Footnotes 10 External links

[edit] Notarial acts at Civil law

As a lawyer, a civil-law notary prepares legal instruments of writing called notarial acts. These acts are public instruments, that is, recorded with and authenticated by a public office or employee. They also require unusual solemnity, being written with notarial wording according to strict prescribed formalities of language and often form precedents. A notarial act is self-authenticating and endowed with executory force, direct evidentiary status, and probative value at civil law. This value amounts to the fact that when a notary-at-civil-law drafts or signs his name to a document, the result in virtually all civil-law jurisdictions is a nearly conclusive presumption that the document is a true record of the facts asserted or recorded within (presumption of validity).^[3] Notarial acts are open to rebuttal, but a contesting party bears the burden of bringing a collateral attack against the authenticity of the act, and must prove the instrument's invalidity by full, clear and strong evidence.^[4] This comes from the fact that a notary is expected to verify the facts, assertions, or events mentioned in his act, thereby assuming responsibility for its contents, giving warrant to its authenticity, and entitling it to full faith and credit in law. To ensure this, a notarial act is in authentic or public form when it is signed by the parties to the act, witnesses, and the attesting notary.

[edit] Drafting phases

Traditionally, notarial acts in public form are first written as minutes (originally known as protocols), that is, as memoranda or rough drafts. In the past, this involved two kinds: first, the brief notes or rough minutes (It. imbreviatura, nota), which were in shorthand, small lettering (known as a minute hand), and highly abbreviated, and second, the fair minutes, which were written out in long hand and included fully formed sentences and details of the act. The fair minutes constituted a minute copy which was filed and archived in a notary's protocol, thereafter known as the protocol copy. The particulars of the act - appearer, fees, subject matter, witnesses, date, and so forth - were recorded in a register or logbook and the original briefs were inserted into minute-books. Now, however, it is more common to produce only one set of minutes, if any.

From the protocol copy the notary draws up or extends a fully engrossed execution copy, known as an engrossment (Lat. extensio, grossa), which serves for all intents and purposes as the genuine document since it contains not only the transactional details but also the formulaic language and wording of notarial acts. It is also the only copy that has fresh signatures and seals on it. The engrossed copy is issued to the client or clients, referred to as an appearer or appearers. However, appearers are generally only entitled to one full endorsed execution copy, so any other copy issued thereafter is an exemplified notarial copy which does not contain the appearers' fresh signatures and lacks an enactment clause and anything else that would make it valid in the eyes of the law; exemplifications (Lat. expeditio) are therefore only for reference purposes.

In some cases, acts are passed (i.e., drawn up) in simple original, that is, only an execution copy is produced and issued to the appearer, and the notary does not retain a protocol copy of any kind. In other cases, acts are passed in duplicate or multiple counterpart originals, with one being the protocol copy.

[edit] Status at law

One of the things that distinguishes a civil-law notary's acts from those of a notary public is the fact that under common law drafts and non-identical copies are considered to be separate documents whereas under civil law this is not necessarily so. Minutes, which are in many cases illegible and incomplete, are deemed firsthand proof of an act and are considered to be originals, whereas the engrossment is not.

[edit] Distinction from Notaries public

Save for Louisiana, Puerto Rico, and Quebec, a civil-law notary should not be confused with a notary public in the United States and Canada, who has none of the legal powers notaries enjoy at civil law. Rather, notaries public only have the power to administer oaths, take declarations or depositions from witnesses, acknowledge signatures, and certify copies, usually in conjunction with some legal process. In Louisiana, Puerto Rico, and Quebec, private law is traditionally based on the French and Spanish civil codes, giving notaries greater legal powers, including the right to prepare wills, conveyances and generally all contracts and instruments in writing. For this reason, immigrants from civil-law countries where civil-law notaries exist, particularly those from Latin America, are often confused by the office of notary public and have been defrauded by dishonest notaries misrepresenting themselves as having legal powers. Thus, in some states there have been ongoing efforts to prohibit notaries public from listing themselves as notario público. Such a law has existed for more than fifteen years in California. Similar laws now exist in Texas, Illinois, Tennessee, Georgia, and Florida.

Florida and Alabama have recently enacted statutes allowing for the appointment of Florida or Alabama attorneys as civil-law notaries with the power to authenticate documents and transactions. See Fla. Stat. § 118.10, Fla. Admin. Code. 1C-18.001 and Ala. Code § 36-20-50. This is not the same as a notary public appointment. The new legislation is an attempt to encourage business transactions with foreign parties used to dealing with civil-law notaries.[4]

[edit] Netherlands

Dutch notaries are part of the Royal Society of Notaries (Koninklijke Notariële Beroepsorganisatie (KNB)) and occupy a special place among legal officers in the Netherlands along side other lawyers, court bailiffs, and tax advisors. This is apparent first and foremost from the way in which notaries are appointed and perform their duties. As a lawyer, a notary takes on paying clients and is appointed for life by the Crown. Life appointment is designed to safeguard the independence needed by notaries to perform their duties.

Notaries are independent and impartial. Unlike trial lawyers or legal advisors, a notary does not act for just one party. Instead, in the Dutch legal system, he or she is required to act impartially on behalf of all parties to a contract or transaction. A notary does not therefore represent or act in the interest of any one party. For example, when real property is conveyed, notaries act for both the seller and buyer. They are dutybound not to betray client confidentiality, known as legal professional privilege, which gives them the right to withhold information in court as would a trial lawyer or doctor. In cases where a notary acts as legal advisor to a particular party to a transaction, that notary is supposed to counsel all parties including third party beneficiaries.

All notaries are law graduates. Not only are they experts in family, succession, corporate, and property laws, but they must also stay up-to-date about related cases and certain aspects of tax legislation. If necessary, a Dutch notary will coordinate the efforts of other legal officers. However, under no circumstances may a notary represent clients in court.

Apart from providing legal advice, a notary also records contracts either because the law requires it or at the parties' request. Under Dutch law, a notarial act is probative of the date and signatures subscribed therein. Notaries archive the original (protocol copy) and issue exemplfications to the parties. The only fully endorsed copy, known as the execution copy, stands as prima facie evidence of title like a court order. There is therefore no need for the party to or custodian of a notarial act to provide extraneous evidence to verify the act's authenticity. And under Dutch law, for acts to be executory, they must be public instruments, which is why any instrument drafted by a common-law lawyer, which is never public, is not directly enforceable in the Netherlands.

The new Notaries Act (Wet op het Notarisambt), effective as of October 1999 (156 years after the original act), reinforces the official position of notaries, but also expands upon and adds to their traditional services. The consolidation of the notary’s official position is, for example, reflected in the way the requirements of impartiality and independence have been enshrined in law, the many regulations a notary and notarial clerk are required to observe, and the fact that a notary is prohibited from acting as a trial lawyer. Market forces have widened the possibility for notarial clerks to become notaries and for competition. However, the new Notaries Act has not introduced substantial changes to the profession. While Dutch notaries are public officers and their acts are public instruments, they are not government employees and instead act as independent lawyers earning money from private practice.

The new law makes it easier for notarial clerks to set up a practice and gives notaries more freedom in determining their fees for services. The Act has provided for the establishment of an external committee of experts; if notarial clerks submit a sound business plan to the committee, they have a greater chance to be approved to set up their own practice. Greater freedom in the fees a notary can charge implies that the Royal Society of Notaries no longer fixes fees or recommends rates. Since July 2003 notaries have been free to set their own fees. Maximum rates fixed by the authorities now apply only to family law services in certain circumstances.

[edit] France

A French civil-law notary, or notaire, is a highly specialized lawyer appointed as a public officer by the Minister of Justice. The profession began admitting women in 1948, and by the end of 2002 women numbered 1,378 and accounted for 17.3% of all notaries.^[5] A notarial office (étude) usually includes, aside from notaries, notary clerks (clerc de notaire) of different kinds - junior (clerc employé), specialist (clerc technicien), and executive clerks (clerc cadre)^[6] - as well as legal secretaries, trainee notaries (with degrees) (notaire stageaire) and apprentices (without degrees), and accountants. In smaller offices, estate clerks are kept separate since their work differs significantly from other practice areas; in larger firms, clerks are separated into divisions by specialization. Secretaries often times go on to pursue a notary clerkship.

[edit] Education

Clerks, which are essentially a form of paralegal or law clerk, earn undergraduate law degrees with a specialization in clerical studies from an accredited school of notarial law. Notaries attend the same schools to earn Master's degrees in Notarial Law. For graduate degrees, there are usually two options: a coursework-based path and a practical training path. The coursework track begins with a competitive entrance exam in applied legal studies and is followed by two years of simultaneous college courses and an in-office notary mentorship capped by a Master's thesis. The practical training option requires only one year of part-time courses, a qualifying exam, and a two-year articled clerkship as a trainee notary supplemented with on-site training seminars. On average, however, the clerkship tends to last 3-5 years.^[7] In addition, notary clerks with a minimum of 9 years of in-office experience, 6 of which spent as a junior clerk, as well as judges and barristers of 6 years standing may become a notary by passing a professional exam. Notaries are also required to attend regular continuing education courses and seminars.

[edit] Practice

In France, notarial acts, whether in public or private form, have a high degree of authority and are considered self-authenticating public instruments (acte authentique), received as firsthand and primary evidence in court, and thereby accorded full probative value and executory force, and deemed to be proof of their contents. A notarial instrument also fixes the date at which its parties are bound without necessitating delivery and acceptance (as opposed to a deed or contract under common law) and, through registration, the data^[8] (date certaine) of the act's execution so as to safeguard against third party claims. To be rebutted or challenged, a notarial act must be subjected to special court proceedings, known as an inscription de faux or "falsification of public document", to prove the act contains errors or has been maliciously altered, interlineated, edited, or falsified.^[9]

Notaries engage in a wide variety of legal activities ranging from contract drafting and legal advising - primarily in business, family, and property law. Preparing notarial acts between private parties, advising the parties of the scope of their contractual obligations, ensuring that the act or contract is fair and unbiased, and acting as a non-contentious and impartial advocate for the act, the notary prevents and resolves potential conflicts of interest.

Notaries have a monopoly on marriage contracts, marital property systems, successions, and conveyancing (realty sales, mortgages, etc.). They are also experts in the law of property with exclusive access to France's M.I.N. database which contains all property transfer and conveyance information. This gives notaries a singular advantage in gauging the property market, thus allowing them to appraise property, conduct transactions, and handle taxes and financing.

In France, when a notarial act is drawn up before one notary subscribing, it is said to be ordinaire, or in common form, and when before two notaries with the second attesting, then it is solennel, or in solemn form.^[10] Acts may be prepared in duplicate or simple originals, said en minute and en brevet respectively. When passed in simple original, the single duly executed original is issued to the client, and its particulars are logged in the notary's register. Originally, en minute meant that a minute copy was archived in the notary's protocol and a fully engrossed execution copy (called a grosse and now termed copie exécutoire) was given to the client; however, nowadays, it is more common for the two to be identical save for the fact that the second is duly executed and headed and footed with the same formule exécutoire^[11] or "enactment clause" used on court orders and writs. Minutes and engrossements are only drawn up once, and, should a past client lose their copy or need further copies, by law, said person may only receive exemplifications (expédition, now termed copie authentique) of the act.

[edit] Fees

To understand what one wrongly calls notary’s fees, it is necessary to recall that they also include various taxes, the notary acting as a Tax collector on account of the State and local government agencies. The average actual fees of the notary for a real estate deal is lower than 1%, excluding VAT, of the selling price, and averages between 1% and 2% of the inheritance for a succession. The notary being a civil law notary who is both a public officer and an independent professional, his fees obeys to different sets of rules depending on his activities.

When a notary acts in his main role as a public officer, i.e., authentificating private agreements that he signs with his customers, he is appointed with fees that are mandatory for both his customer and himself. Therefore the legal tariff ^[12] is identical and invariable within France. Its proper calculation is controlled, with a two years prescription, by the Departmental Chambers of Notaries and the Civil Law Courts. Of course, a notary cannot increase nor decrease the mandatory fees, with only but a few exceptions:

• He can grant a pro-bono. In such a case the customer would only pay the official deed taxes;
• When the compulsory fees exceed 80 000 € a notary can grant a discount;
• When he acts as a real estate negotiator, a notary can grant a discount on the related fees;
• When a notary is ordered in justice to draft an official deed, his fees are reduced when not signed within the envisaged delay;
• When an official deed is signed in lieu of a lawsuit solved or negotiated by a notary, the tariff can be doubled;
• The fees for official deeds in businesses or corporations’ matters entirely obey to the article IV set of rules below ;

Plus, the law guarantees the free choice of a notary for his customer, in every circumstance excepted when ruled by a justice court. For this reason, the drafting of a single official deed by several notaries is without additional expenses for their customers. As a rule, all notary fees must be provisioned entirely before the signature of the official deed. Generally, their exact amount cannot be known precisely on this date, if only because of the upcoming formalities. Since the amount you are asked to pay for has to be sufficient to cover the foreseeable expenses, a provisional amount is rounded up, with a higher basis. Once the final expenses are known, the exceeding or insufficient difference is paid back or asked for within a two months delay, accompanied with a detailed calculation. Any payment in cash is forbidden beyond 750 €, and customers should expect to be asked for a chèque de banque, which is a check signed by a French bank.

As a family or management advisor, or as a business consultant, the notary is an independent professional who must compete with other professions: referees, lawyers, geometricians, etc. Such is the case when a notary gives his customers a legal advice or assists them in drafting a tax declaration or a private agreement signed solely by his customers. When a notary does not act in his capacity as a public officer, his fees are decided by a mutual agreement between his customers and himself. Then, it is all about price dealing : to this effect, the estimated amount of the so-called article IV fees must be indicated and quantified as a priority. When costs are foreseeable, the notary applies a flat-rate amount or an agreed percentage. When they are not, he rather suggests an hourly rate. article IV fees could then be somewhat modified if the service has suddenly evolved or differed. Of course, the proposed article IV fees could be given away completely or partially, but, as the saying goes: “the labourer is worthy of his hires”. In theory, if no agreement were to be found, Civil Law Courts would settle the fees. But beware: once the customer has signed it, the article IV fees cannot be disputed. In such a case, there is no coming-back at all. Eventually, it must be understood that, relating to an equal amount of work, the article IV fee will generally be higher than the mandatory fee. Indeed, the legal tariff ensures a social equity of the costs, whereas the article IV fees equals the actual material and human costs increased with a profit margin. article IV fees are therefore not only variable in proportion with time passed, complexity of the matter, financial stakes, and comparison with competition. They can, and will, vary from one notaire to another…

In no way can a notary add, without his customer's consent, an article IV fee to an official deed’s compulsory fee, under pretext for example that they underestimated the proper and actual work to be achieved. Indeed, all the care, work and advices related to the drafting of official deeds, all the projects, mails, and formalities are included in the compulsory fees. Therefore, when a notary’s advice leads to the signature of an official deed, only a mandatory fee is owed. If not, only an article IV fee is owed. Exceptionally, when a particularly demanding service is actually rendered, such as an extensive translation work, the addition of both fees is allowed, provided that the customer's preliminary information, and thus the possibility for him to express his disagreement, is given. Again, once the customer has signed the article IV fee, there is no coming-back.

[edit] Professional organizations

All French notaries are jointly and severally liable for professional errors in the performance of their duties. When liable, damages are paid from a nationwide consolidated fund. Group liability of this kind is not known for any other profession in the world. Notaries are therefore required to be bonded or take out professional indemnity insurance for the due protection of their clients. French notaries are part of and regulated by a local or county Society of Notaries, or Chambre des notaires, on whose advice notaries are appointed and who conduct annual accounting audits of notarial offices, establish and regulate professional and ethical standards, and can censure or temporarily suspend notaries.^[13] Notaries are also members of a regional Council of Notaries (Conseil des notaires) which acts very much like a common-law college of notaries by providing continuing education and other support services to notaries; they also take disciplinary action against notary misconduct including dismissal, removal from office, and revoking a notary's license to practice.^[14] The regional councils are governed and headed by the Council of Notaries of France (Conseil supérieur du notariat) which conducts surprise inspections, provides research, outlook, and public relations services, and acts as the profession's administrative head.^[15]

[edit] Germany

In Germany, the main function of a Notar (pl. Notare) is in contracting agreements in specialized areas of:

• Property law
• Deeds and conveyances
• Successions
• Family law
• Corporate law

German notaries are required to have an education equivalent to other officers of law like a judge or a lawyer. A German civil-law notary is appointed by his or her state, authenticates and attests acts, and provides independent and impartial advice to all contracting parties. Depending on the state, German notaries practice either exclusively as a notary or dually as a solicitor and notary. In most parts of Germany, notaries maintain private practices and do not generally work for the Government except in Baden-Württemberg where they are regularly staffed in government agencies and offices.

German notaries prepare acts according to federal law and provide legal advice regarding contracts and obligations. The notary is required by law to read over aloud the act to the parties who then sign with the notary. The notary affixes his official notarial seal on the act to give it authentic form.

In Germany, notaries are very important in day-to-day business. For example, all conveyances of real estate must be signed and sealed at the office of a civil-law notary pursuant to s. 311(b) of the German Civil Code (Bürgerliches Gesetzbuch or BGB). Likewise, the assignment of shares in a German limited liability company (Gesellschaft mit beschränkter Haftung or GmbH) must be notarised under s. 15-3 of the Limited Liability Companies (GmbHG) Act.

[edit] Other Countries

As a general rule, countries who formerly were colonies or viceroyalties of Spain, France or Portugal, have retained a civil law tradition and, accordingly, a civil-law notarial profession. This is the case with most Latin American and French-speaking African countries, but not so of Asian countries.

[edit] The International Union of Notaries

Most of the countries which have civil-law notaries are members of the International Union of Notaries (UINL). Members include:

• Europe (34)

Albania, Andorra, Armenia, Austria, Belgium, Bulgaria, Croatia, Czech Republic, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, United Kingdom (only the City of London), Luxembourg, Malta, Moldava, Monaco, Netherlands, Poland, Portugal, Romania, Russia, San Marino, Slovakia, Slovenia, Spain, Switzerland, Macedonia, The Vatican and Turkey.

• Americas (23)

Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, El Salvador, Ecuador, Guatemala, Haiti, Honduras, Louisiana (United States), Mexico, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Quebec (Canada), Uruguay, and Venezuela.

• Africa (15)

Algeria, Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Gabon, Guinea, Ivory Coast, Mali, Morocco, Niger, Senegal and Togo.

• Asia (3)

Bangladesh, China (People's Republic), Indonesia, Japan.

The members of the Union are represented by their respective National Councils or by similar national organisations and by notarial districts and regional or provincial societies of notaries.

The UINL has preferential relations with professional legal officers who fulfil notarial duties in various countries (or federated States within a Federation) or with the bodies that represent them.

The countries that have asked to join the Union are: Georgia, Mauritius Islands, Kazakhstan, Mauritania, Ukraine, Belarus, Bosnia-Herzegovina, Cambodia, Iran, Kyrgyzstan, Laos, Madagascar, New Zealand, the Philippines, Serbia, the Seychelles, South Korea, Tunisia and Vietnam.

The federated States that have asked to join the Union are: Alabama, British Columbia, Florida, Illinois, Indiana, and Texas.

[edit] History

[edit] Origins

Scribes have existed since recorded history, but the notary's authentication tools were first invented in the Fertile Crescent where in Babylon the use of signatures and distinct signs in clay tablets was required. Egypt innovated the use of papyrus and the calame, added legalistic formalism to document preparation, and had specialized notary-scribes. Greek city-states lacked uniformity, but, universally, public instruments, usually deeds and conveyances, were kept in official registers and drafted by scribal mnemone (or basiliki ipographi) who were tied to a certain district and whose written acts trumped oral testimony^[16]. These innovations would be combined and adopted under the Roman empire.

[edit] Roman Empire

In Rome, scribes (scribae) acted as court recorders and copyists of instruments, whereas the notarius took dictation and raw minutes or memoranda (notae) of proceedings in shorthand. Different kinds of notarius existed: some recorded proceedings, others transcribed state papers, some supplied magistrates with legal forms, and others registered judgements and decrees. A number were involved with the voluntary, or non-contentious, jurisdiction of the courts by drawing up deeds, wills, and conveyances which could then be sealed before the presiding magistrate and affixed with the official seal of the court, thereby rendering them public and authentic acts. Otherwise, most instruments were in private form. One type of notarius was the exceptor who emerged as the official clerk attached to all bureaus and courts and required at all municipal meetings of curiae.^[17]

Yet, drawing up private documents was more the preserve of the tabellio, a professional scribe who held no public office. The tabellio used clerks to take shorthand notes and wrote them out in minute form. This was then engrossed into an extended act, duly attested by witnesses and endorsed with a completio, or eschatocol (docquet). Early on and like the notarius, a tabellio's instrument lacked authenticity. Only by attaching copies of the judicial proceedings wherein one party petitions the second party to either contest or accept the act in open court could the instrument be made authentic, i.e., imbued with fides publica "public faith and credit". In later years, it became possible to register and depsoit a tabellio's acts in public archives to make them authentic. Both exceptors and tabelliones were organized into civil guilds (collegia, scholae) to ensure the official recording of both public and private acts. Though tabelliones were of lower social status, the position had high mobility, and official posts often drew young nobles.^[18]

By the Late Roman period, notarius came to denote registrars attached to the courts of provincial governors, secretaries of emperors, and the highest class of officials in the privy council and the imperial chancery. In the Church, they were administrative secretaries for bishops and monasteries and were important as correspondents in the doctrinal battles of the 3rd and 4th centuries. Constantine himself created scholae of notaries for bishops and their courts. Tabellios were nicknamed cursore "runners" because of their quick drafting speed and their "cursive" minute hand. They were subsequently known as forenses and publici - from their presence in public places - before being subsumed under the tabulairus, or notary-clerk, functions. Lawyers - or juris prudense or juris consulte - also often acted as notaries.

[edit] Early Middle Ages

With the degeneration of public administration and its assumption by the Church in the West, as well as the replacement of Roman legal writing culture with a Germanic oral legal system based on witness testimony and open court proceedings, secular notaries became obsolete. In a select group of urban areas, such as in Northern Italy and Southern France, Roman law tended to be preserved, at least for civil matters, and there the secular notary lived on mostly as a draftsman. Ecclesiastical notaries (notarius ecclesiaie) in the main perfected a number of common notarial devices, namely the use of ribbons, seals, manual signs (signum), and the form of the eschatocol during this time. They also came to be called scrinarius. Pope Gregory the Great (r. 590-604) organized papal notarii or scrinarii into a schola; Gregory's registers show that they were responsible for recording correspondence, ordinations, privileges, donations, synodal acts, and matters related to the Patrimony of Saint Peter, as well as serving as papal advisers, diplomats, and envoys. Similarly, the papal chancery, archive, and library were organized around their efforts.^[19]

In Northern Italy and during the Ostrogothic and Lombard periods, the offices of exceptor and tabellio were carried out by scriptores and notaries. The notarius civitatis ("of the city") served Lombard kings and nobles in their courts; notarii ecclesiae continued to aid bishops, abbots, and some of the public. These two kinds of notaries attended the same episcopal schools, and the existence of ecclesiastical notaries led to the demand for secular ones. Unorganized and unregulated "lay notaries" (publici notarii) handled private matters, since the Lombards did not practice insinuation. From the late 600s on, important associations of notaries (and probably notarial education) existed in Pavia, Cremona, Milan, Lucca, Rome, and Ravenna.^[20]

In Merovingian France, ecclesiastical notaries were attached to county courts as a clerk of court who recorded judicial proceedings and prepared and engrossed deeds which were later sealed before the count with the court's official seal to render them public and authentic. Otherwise, it was not until the 9th century, when Charlemagne, in an effort to reform the county court system, began to appoint notaries to accompany itinerant royal commissioners during their assize circuit: these notaries were called royal notaries. By the 10th century, they had become permanent clerks of court and came to greatly outnumber and then absorb the notaries of the count into their corps. This system was preserved by the Holy Roman Empire.

Charlemagne also raised ecclesiastical notaries to the status of the deacon or priest. As a consequence, the Office of notary became a stepping-stone to higher church office. They continued to serve the public as well before being made obsolete by the full emergence of a lay notarial profession in the 12th century. Charlemagne ordered that every bishop, abbot, and count employ a notary, appointed by himself if necessary. He therefore accepted and altered Lombard practice, formalized it, and spread it to the rest of the empire. His own notarial secretaries were the cancellarii. One notary in particular, Paul the Deacon, played a pivotal role in the Carolingian Renaissance. Paul was trained at Pavia, was chancellor to the Lombard king Desierius, taught at the Frankish palace school (782-787), and may have been responsible for reforming the notarial system. The famous missi dominici oversaw the work of comital (counts') and episcopal notaries, who, under Louis the Pious, were drawn specifically from the noble class. Under Lothair I, imperial law regulated notarial practice of both episcopal and comital cancellarii and private notaries and limited a notary's geographic jurisdiction.

[edit] Byzantine Europe

In the East, however, the tabularius, called symbolaiographos and the juris, the nomikos, continued to thrive. To stem fraud, Justinian reforms codified (cf. 44th and 77th novellae) new precautionary measures for giving a document authenticity such as:

• the actual presence of the attesting tabellio and the recording of other witnesses' names,
• the obligatory presence and signatures of witnesses to an act's signing
• dating by regnal and consular year and indiction
• inclusion of an eschatocol in which the tabellio claimed responsibility for the document
• recitation before a judge before recordation, a process known as insinuatio.

Some measures proved untenable and, with the short supply of administrators and half loss of the Empire (early 7th c.), notaries became a primarily urban phenomenon with somewhat relaxed standards of practice. Still, they remained the highest-ranking lawyer and instrumental to the legal and court process as Germanic-type oral proceedings were unknown and Roman legalistic traditions survived intact.

In time, all notarial functions (clerical and law officer) were concentrated into the law-trained nomikos, though the Church would provide notarial services in town and rural settings. The Church also retained the old separation between symbolaiographos, or notary-draftsman, notarios, or notary-scribe, and the clerical nomikos, or notary lawyer. By the 10th century, secular nomikoi had been organized into a regulatory guild, were attached to the State, appointed by the Emperor, and ranked among the highest of legal officers. The introductory portions of their acts also tended to invoke God, and crosses and Christian insignia were often applied to the face of an act. Notarial practice would be slightly westernized under Venetian occupation, but remained substantially unchanged until the end of the Empire.^[21]

[edit] Late Middle Ages

Imperial Ravenna retained separate scholae of imperial notaries, ecclesiastical notaries, and tabelliones. However, with the fall of the Exarchate, imperial notaries disappeared with unauthorized tabelliones absorbing most of their legal jurisdiction and function. During the 11th century and the early 12th century, attempts to bring the tabellionate under imperial purview were resisted and failed at Ravenna, though by the 13th century many professionals styled themselves notarius et tabellio, combining both functions in their practice. By the 13th century, even the Ravennati adopted the title "notary by imperial authority," and the retrograde tabellionate slowly dissolved. The ecclesiastical notariate in Ravenna retained its position until the 12th century, but did not interfere in the sphere of the secular notariate. During the 1100s, the lay tabellionate absorbed most of the functions of the church notary, even running Ravenna's episcopal chancery by 1127. Elsewhere in Italy, where it had survived, the independent ecclesiastical notariate likewise slowly disappeared: in Lucca, the comital notariate replaced it during the Carolingian period; and in Bologna, home of the revived imperial legal tradition, the bishop's last clerical notary died in 1133. Even in Rome, lay notaries gained in importance, and in 1211 Pope Innocent III declared that no notary in a church court could hold major orders.

In southern Italy, many areas that fell to the Arabs lost the Latin notarial tradition, while some, e.g., Puglia, Calabria, and Lucania, held to Greco-Byzantine practice. Areas retaining Latin-Lombard traditions used the notarius, but he may have drawn his authority from the palace, church, monastery, or even city; or he may have been itinerant, without official authority. During the 10th century, Naples maintained a clear organization of notaries (curiali) in a collegio under a primarius aided by a tabularius. Documents were often drawn up by discipuli ("apprentices"), but only the notary could apply the eschatocol. Amalfi followed a looser organization: scribae civitatis ("scriveners") were called curiali by c. 1000, many may have worked only part time, and there was no clear caste of discipuli. Gaeta retained the scriba civitatis, though mixing Greek with Latin traditions and clerical with secular functions and statuses. In the 10th and 11th centuries, titles included presbyter ("priest") et notarius civitatis and Leo greco-latinus presbyter et scriba civitatis, though by the early 12th century a simple notarius civitatis would do. The Southern Italian tradition was for the most part replaced by the Frankish tradition when the region was conquered by the Normans.

As Northern Italy came to free itself in the late 11th century from imperial rule and episcopal authority, it established municipal authorities (known as consulates) who, with the increase in literacy, came to rely heavily on the lay notary to produce, archive, and standardize public instruments under municipal seal. In addition, the Venetian pillaging of Byzantine libraries revived bookish learning and led to the founding of law schools, such as at the University of Bologna which trained notaries-at-law. Similarly, as schools for notaries relied on Byzantine law and came to determine the development of the notariate, by the 10th century, the Carolingian and the Byzantine traditions were no longer distinguishable. The Italian notarial profession was transmitted from Lombardy to Southern France through trade, first to Languedoc, and eventually northward.

[edit] See also

• Barrister
• Enotary
• Lawyer
• Notary public
• Solicitor

[edit] British Commonwealth

• Justice of the Peace

[edit] Footnotes

[edit] External links

• The International Union of (Civil Law) Notaries
• FORUM OF YOUNG CIVIL LAW NOTARIES - Access to the Civil Law Notary Profession in the UE (in Spanish)
• The English page at notaires.fr (French site)
• Adamantia Maltezos, notary.notaire.
• History of Notaries