How authentic is a deed? Acte 1

Sunday, 01 February 2009
Examining the definition of a notary and the difference between a notorial authentic acte and a common law deed.

The Civil Law Notarial conference that produced the Declaration of Madrid defined a notary as ‘a public official to whom has been delegated the authority of the State in order to give to the instruments which he draws up, and of which he is the author, the character of authenticity which he confers on the said instruments, whose keeping, probative effect (recognition) and executory effect (enforcement) are thereby assured’.

In some states, a notarial authentic acte can only be deprived of authenticity if it is declared invalid by a judicial authority.

So what is the difference between a Civilopian notarial authentic acte and a common law deed? Does it matter?

The globe does now seem to be broadly divided into the one world of trusts and STEP on the one hand and the other world of Civilopia and the UINL (International Union of Notaries) on the other. However as the Earth gets warmer and smaller, as people travel more often and have assets in different jurisdictions, not only does the frequency of issues of conflicts of laws rise, but also that of the differences between the legal mechanics of different jurisdictions. There are some interesting worm holes, where the worlds mix and collide.

Is a Quebec Notarial trust ‘better’ than a trust executed in British Columbia? Is a French Notarial Mandat de protection future ‘better’ than a Scottish Continuing Power of Attorney? Is a Civilopian foundation to be preferred to one from the Commonwealth?

The Legal Affairs Committee of the European Parliament (JURI) is currently struggling with these issues. With the impetus of the French Presidency during the latter half of 2008, JURI has been looking at the recognition of documents and produced in November 2008 a study snappily entitled ‘Comparative Study on Authentic Instruments – National Provisions of Private Law, Circulation, Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union’.

The Study is prepared by the Council of the Notaries of the European Union (CNUE), a highly effective lobbying organisation for EU Civilopian notaries, and the study highlights that ‘Examining the examples of England and Sweden, this study reinforces the traditional view, that the concept of authentic instruments for contracts or other declarations is not recognised in the Common Law and Nordic legal systems. In particular, the functions of the English general notaries can be compared to the certification of signatures rather than to the issue of authentic instruments’.

JURI is currently proposing a motion requiring the EU Commission to produce a Regulation for the recognition of authentic actes and in particular notes that ‘in order to raise awareness among legal professionals in those member states where authentic acts do not exist, a suitable information campaign should be initiated by the Commission and every effort should be made to ensure that common law legal professionals are aware of the work done by civil-law notaries and of the potential advantages for their clients – in terms of, in particular, legal certainty – of using authentic actes in transactions that they are proposing to conclude in those countries where that instrument is used; whereas this underscores a need often expressed by Parliament’s Committee on Legal Affairs for trans-European networks of legal practitioners, information campaigns and material and common training, which the Commission is called upon to promote’.

As an English Notary and practitioner in the STEP world, I am preparing myself for the task of being persuaded as to the potential advantages for my clients of using Civilopian authentic actes, even though my common law documents will not be recognised in Civilopia.

Come back for Acte 2 in the next edition of the STEP Journal.

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Richard Frimston

Richard Frimston TEP is a Partner at Russell Cooke LLP and Chairman of the STEP Cross Border Estates Group.

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