Notary

Last updated

Notarius LEX-W-badge.png
A notary at work (painting by German artist Max Volkhart) Max Volkhart Beim Notar.jpg
A notary at work (painting by German artist Max Volkhart)
Entrance to notary's office in Vigo, Spain Notariavigo.jpg
Entrance to notary's office in Vigo, Spain
"Der Notar" ("The Notary"), Copper engraving from 1698 book by Christoph Weigel the Elder Fotothek df tg 0008473 Standebuch ^ Amt ^ Notar ^ Jurist.jpg
"Der Notar" ("The Notary"), Copper engraving from 1698 book by Christoph Weigel the Elder

A notary is a person authorised to perform acts in legal affairs, in particular witnessing signatures on documents. The form that the notarial profession takes varies with local legal systems. [1]

Contents

A notary, while a legal professional, is distinct from an advocate in that they do not represent the person who engages their services, or act in contentious matters.

The Worshipful Company of Scriveners use an old English term for a notary, and are an association of notaries practising in central London since 1373.

Overview

Documents are notarized to deter fraud and to ensure they are properly executed. An impartial witness (the notary) identifies signers to screen out impostors and to make sure they have entered into agreements knowingly and willingly. Loan documents including deeds, affidavits, contracts, and powers of attorney are very common documents needing notarization.

Code of Hammurabi Law 122 (c. 1755–1750 BCE) stipulated that a depositor of gold, silver, or other chattel/movable property for safekeeping must present all articles and a signed contract of bailment to a notary before depositing the articles with a banker, and Law 123 stipulated that a banker was discharged of any liability from a contract of bailment if the notary denied the existence of the contract. Law 124 stipulated that a depositor with a notarized contract of bailment was entitled to redeem the entire value of their deposit. [2] [3] [4]

To "notarize" a document or event is not a term of art, and its definition varies from place to place; but it generally means the performance by a notary of a series of possible steps, which may include the following (not an exhaustive list):

  1. Identifying the person appearing before the notary through personal acquaintance or by reference to significant proofs of identity including passport, driving license, etc. [5]
  2. Where land titles are involved or significant rights may accrue by reference to the identity, signatures may also be verified, recorded and compared.
  3. Recording the proof of identity in the notarial register or protocol.
  4. Satisfying the notary that the person appearing is of full age and capacity to do whatever is intended.
  5. Taking an affidavit or declaration and recording that fact.
  6. Taking detailed instructions for a protest of a bill of exchange or a ship's protest and preparing it.
  7. Recording the signature of the person in the register or protocol.
  8. Taking an acknowledgment (in the United States) of execution of a document and preparing a certificate of acknowledgement.
  9. Preparing a notarial certificate (in most other jurisdictions) as to the execution or other step.
  10. Sealing or stamping and signing the document.
  11. Recording all steps in the register or protocol.
  12. Delivering the completed original to the person appearing.
  13. In some cases, retaining a copy of the document in the register or protocol.
  14. Charging the person appearing a fee for the service.

Common law vs. civil law notaries

Most common law systems have what is called in the United States a notary public, a public official who notarizes legal documents and who can also administer and take oaths and affirmations, among other tasks. [6] Although notaries public are public officials, they are not paid by the government; they may obtain income by charging fees, provide free services in connection with other employment (for example, bank employees), or provide free services for the public good. In the United States (except Puerto Rico), any person – lawyer or otherwise – may be commissioned as a notary.

Most civil law-based systems (including Puerto Rico and Quebec) have the civil law notary, a legal professional performing many more functions than a common-law notary public. They are qualified lawyers who provide many of the same services as common-law attorneys/solicitors (negotiation and drafting of contracts, legal advice, settlement of estates, creation of a company and its status, writing of wills and power of attorney, interpretation of the law, mediation, etc.) except any involvement in disputes to be presented before a court. [7]

In the United States, a signing agent, also known as a loan signing agent, is a notary public who specializes in notarizing mortgage and real estate documents.

Notaries in civil law jurisdictions are specialized in all matters relating to real estate, completing title exams in order to confirm the ownership of the property, the existence of any encumbrances such as easements or mortgages and hypothecs.

Often, in the case of lawyer notaries, the certificate to be provided will not require the person appearing to sign. Examples are certificates authenticating copies and certificates as to law, such as certificates as to the capacity of a company to perform certain acts, or explaining probate law in the place.

Online systems

In the United States, many states including Virginia, Texas, Ohio, and Nevada have passed laws allowing for online witness by notaries, using screen sharing or webcams as well as identity verification processes. [8] To comply with state law, notaries must be located in any of the states that have authorized remote notarization services. Virginia was the first state to pass legislation allowing online notarization in 2012. Texas and Nevada passed similar laws in 2017 that went into effect in July 2018. As of December 19, 2023 there were 47 states and the District of Columbia have laws that allow remote e-notarization, although not all have finished implementing necessary rules. [9]

See also

Related Research Articles

<span class="mw-page-title-main">Notary public</span> Civil position that certifies documents and administers oral oaths and affirmations

A notary public of the common law is a public officer constituted by law to serve the public in non-contentious matters usually concerned with general financial transactions, estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are to validate the signature of a person ; administer oaths and affirmations; take affidavits and statutory declarations, including from witnesses; authenticate the execution of certain classes of documents; take acknowledgments ; provide notice of foreign drafts; provide exemplifications and notarial copies; and, to perform certain other official acts depending on the jurisdiction. Such transactions are known as notarial acts, or more commonly, notarizations. The term notary public only refers to common-law notaries and should not be confused with civil-law notaries.

<span class="mw-page-title-main">Civil law notary</span> Lawyer of noncontentious private civil law

Civil-law notaries, or Latin notaries, are lawyers of noncontentious private civil law who draft, take, and record legal instruments for private parties, provide legal advice and give attendance in person, and are vested as public officers with the authentication power of the State. As opposed to most notaries public, their common-law counterparts, civil-law notaries are highly trained, licensed practitioners providing a full range of regulated legal services, and whereas they hold a public office, they nonetheless operate usually—but not always—in private practice and are paid on a fee-for-service basis. They often receive generally the same education as attorneys at civil law with further specialized education but without qualifications in advocacy, procedural law, or the law of evidence, somewhat comparable to solicitor training in certain common-law countries.

A deed is a legal document that is signed and delivered, especially concerning the ownership of property or legal rights. Specifically, in common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.

<span class="mw-page-title-main">Apostille Convention</span> 1961 foreign document certification treaty

The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, also known as the Apostille Convention, is an international treaty drafted by the Hague Conference on Private International Law (HCCH). The Apostille Convention is intended to simplify the procedure through which a document, issued in one of the contracting states, can be certified for legal purposes in the other contracting states of the Convention. A certification under the Convention is called an apostille or Hague apostille. An apostille is an international certification comparable to a notarisation, and may supplement a local notarisation of the document. If the Convention applies between two states, an apostille issued by the state of origin is sufficient to certify the document, and removes the need for further certification by the destination state.

<span class="mw-page-title-main">Promissory note</span> Legal instrument of payment

A promissory note, sometimes referred to as a note payable, is a legal instrument, in which one party promises in writing to pay a determinate sum of money to the other, either at a fixed or determinable future time or on demand of the payee, under specific terms and conditions.

An employment contract or contract of employment is a kind of contract used in labour law to attribute rights and responsibilities between parties to a bargain. The contract is between an "employee" and an "employer". It has arisen out of the old master-servant law, used before the 20th century. Employment contracts relies on the concept of authority, in which the employee agrees to accept the authority of the employer and in exchange, the employer agrees to pay the employee a stated wage.

<span class="mw-page-title-main">Certified copy</span> Verified copy of a primary document

A certified copy is a copy of a primary document that has on it an endorsement or certificate that it is a true copy of the primary document. It does not certify that the primary document is genuine, only that it is a true copy of the primary document.

In American law, a signing agent or courtesy signer is an agent whose function is to obtain a formal signature of an appearer to a document. In common parlance, most jurisdictions require the appearer to sign before a notary public. From this, the practice of a notary public designating themselves as a signing agent has arisen. There are notaries public who specialize in the notarization of real estate transfer and loan document signings. Signing agents often have certification and training through private organizations, but is not a requirement in law, although it may be a requirement of the lender in the oversight of real estate transaction document signatures.

An eschatocol, or closing protocol, is the final section of a legal or public document, which may include a formulaic sentence of appreciation; the attestation of those responsible for the document, which may be the author, writer, countersigner, principal parties involved, and witnesses to the enactment or the subscription; or both. It also expresses the context of the documentation of the action described therein, i. e., enunciation of the means of validation and indication of who is responsible to document the act; and the final formulae.

A notary public in the Commonwealth of Pennsylvania is an appointed official who acts as an impartial witness and helps defend against fraud.

A notary public in Virginia is authorized to acknowledge signatures, administer oaths, and certify copies On July 1, 2012, Virginia became the first state to authorize a signer to be in a remote location and have a document notarized electronically by an approved Virginia electronic notary using audio-visual conference technology by passing the bills SB 827 and HB 2318.

<span class="mw-page-title-main">Legal document assistant</span> Non-lawyer who helps prepare legal documents

A legal document assistant in the United States is a person who is a non-lawyer but authorized to assist with the preparation of legal instruments. Unlike a paralegal, legal document assistants do not work under the supervision of an attorney.

An eNotary is a Notary Public who notarizes documents electronically. One of the methods employed by eNotaries is the use of a digital signature and digital notary seal to notarize digital documents and validate with a digital certificate. Also known as remote online notarization (RON), electronic notarization is a process whereby a notary affixes an electronic signature and notary seal using a secure Public key to an electronic document. Once affixed to the electronic document, the document is rendered tamper evident such that unauthorized attempts to alter the document will be evident to relying parties. The e-notary will use cryptography and Public key infrastructure to create, manage, distribute, use, store, and revoke the digital certificate. E-Notary will improve the overall security of the closing process with improved customer file tracking and knowledge-based identification authentication, helping to reduce the frequency of errors or fraud. The Electronic Notary also must keep an electronic register of each act performed.

A certified translation is one which fulfills the requirements in the country in question, enabling it to be used in formal procedures, with the translator accepting responsibility for its accuracy. These requirements vary widely from country to country. While some countries allow only state-appointed translators to produce such translations, others will accept those carried out by any competent bilingual individual. Between these two extremes are countries where a certified translation can be carried out by any professional translator with the correct credentials.

The legal system of Ukraine is based on civil law, and belongs to the Romano-Germanic legal tradition. The main source of legal information is codified law. Customary law and case law are not as common, though case law is often used in support of the written law, as in many other legal systems. Historically, the Ukrainian legal system is primarily influenced by the French civil code, Roman Law, and traditional Ukrainian customary law. The new civil law books were heavily influenced by the German Bürgerliches Gesetzbuch.

In the U.S. state of Florida, a notary public is a public officer appointed by the governor of the state to take acknowledgments, administer oaths, attest to photocopies of certain documents, solemnize marriage, protest the non-acceptance or non-payment of negotiable instruments, and perform other duties specified by law.

An act is an instrument that records a fact or something that has been said, done, or agreed. Acts generally take the form of legal instruments of writing that have probative value and executory force. They are usually accepted as self-authenticating demonstrative evidence in court proceedings, though with the precarious status of notaries public and their acts under common law, this is not always so.

In the United States, a notary public is a person appointed by a state government, e.g., the governor, lieutenant governor, secretary of state, or in some cases the state legislature, and whose primary role is to serve the public as an impartial witness when important documents are signed. Since the notary is a state officer, a notary's duties may vary widely from state to state and in most cases, a notary is barred from acting outside his or her home state unless they have a commission there as well.

The banker of ancient times was employed within financial activities, during the ancient Mesopotamian, ancient Greek and ancient Roman periods.

A notarial act is any written narration of facts (recitals) drawn up by a notary, notary public or civil-law notary authenticated by the notary's signature and official seal and detailing a procedure which has been transacted by or before the notary in their official capacity. A notarial act is the only lawful means of proving those facts of which it is the recognized record, whereas on other matters it is usually inadmissible, because, being beyond the powers entrusted to the notary by law, it is non-official. In most common-law countries, multiple-page acts are bound together using a sewn or knotted ribbon, the ends of which are secured by a wafer impressed with the notary's seal. This is called annexing or annexure.

References

  1. "What is a Notary Public?". National Notary Association. Retrieved 9 May 2013.
  2. Hammurabi (1903). "Code of Hammurabi, King of Babylon". Records of the Past. 2 (3). Translated by Sommer, Otto. Washington, DC: Records of the Past Exploration Society: 77 . Retrieved 20 June 2021. 122. If anyone entrusts to ... article in undiminished quantity.
  3. Hammurabi (1904). "Code of Hammurabi, King of Babylon" (PDF). Liberty Fund . Translated by Harper, Robert Francis (2nd ed.). Chicago: University of Chicago Press. p.  43. Archived (PDF) from the original on 13 June 2021. Retrieved 20 June 2021. §122. If a man give ... disputed and repay it.
  4. Hammurabi (1910). "Code of Hammurabi, King of Babylon". Avalon Project . Translated by King, Leonard William. New Haven, CT: Yale Law School . Retrieved 20 June 2021.
  5. "Basic Notarial Duties". American Society of Notaries. Retrieved 16 July 2019.
  6. Piombino, Alfred E. (2011). Notary Public Handbook: Principles, Practices & Cases, National Edition (First ed.). East Coast Publishing. ISBN   978-0-9445606-9-3.
  7. Malavet, Pedro A. (1998). "The Foreign Notarial Legal Services Monopoly: Why Should We Care?". John Marshall Law Review. 31 (3). SSRN   1496460 . Retrieved 13 June 2022.
  8. "State Laws Authorizing Remote e-Notarization". American Land Title Association. Retrieved 21 October 2020.
  9. "Remote Electronic Notarization". National Association of Secretaries of State. 2023. Retrieved 8 September 2024.