Fundamental Principles of the Indian Notarial System

The 122th issue of the Revista Internacional del Notariado has republished a brief report by the President of the Indian Notarial Association. Shidheswar De’s contribution to the most recent issue of the UINL’s journal, “Fundamental Principles of the Indian Notarial System” commences by establishing the core concern of the notary’s practice, namely the certification of authenticity: “The authentic act offers undeniable guarantees: certain date, probative force and enforceability.” Furthermore, “It is a legal instrument adapted to the needs of society: safeguarding individual freedom, preserving economic interests and assuring transparency.” To put is more succinctly, the notarial act “is an instrument of legal certainty as it is a particularly efficient means of evidence.” [p. 97]

President De then sets out in enumerated form the principles which constitute the “essence of the notarial institution in India.” [Ibid.]

  1. Part I – Notaries and their Function
  2. Part II – Notaries and their Documents
  3. Part III – Notaries Organisation
  4. Part IV – Notaries Ethics

What follows is a summary of the salient points under each of the above headings. Practitioners and members of the public are strongly encouraged to read the original article for more information.

Part I

The authority of the Indian notary is established by noting his appointment by the State and Union of India. Notaries are required to act impartially and independently. Notaries are involved in all judicial activities but also aim to resolve disputes through mediation and other pre-litigation means. Notarial certification is sufficient to establish the authenticity and veracity to documents being signed in both the legal and commercial world. [§§ 1-4]

Part II

The authenticity of the notarial act is drawn from the signature, date and content of the document, which is then archived by the notary. The notary must at all times be guided by the instructions of his client but ensure that the outcome is consistent with the applicable laws. Before a notarized document is produced, the identities and authority of the parties must be ascertained and established. The notary must ensure that the instructions of the parties are not coerced but given voluntarily irrespective of the form that the notarial deed takes. Notaries are responsible for their drafting however they may consider suggestions and drafts that are provided to them, and then augment or amend them as needed. Parties who are authorized to obtain copies of a notarized deed have a right to acquire a copy, and that copy will have the same evidentiary weight as the archived original. The notarial deed can be disputed via judicial channels, otherwise it is considered a conclusive statement on the facts as stated in its content: they “enjoy the benefit of dual presumption of legality and accuracy of content.” Among other functions, the notary has the power to legalise signatures and executed documents as well as certify that documents are true and accurate copies of their originals. All notarised deeds that comply with the aforementioned principles are enforceable throughout India, irrespective of the jurisdiction in which they were drawn. [§§ 5-11]

Part III

Indian law – primarily the Notaries Act 1952 (Ind.) – determines the number of notaries and the distribution of notarial offices, as well as the competence of each notary. Notaries must be members of a professional association governing the notarial profession. United Kingdom law no longer governs the appointment of notaries in India, as it did under section 138 of the Negotiable Instruments Act 1881 (Imp). Individual state laws will determine the qualification and conditions for the appointment of notaries, however all will have the requirement that a degree in law is a fundamental criterion of admission to the profession. [§§ 12-15]

Part IV

Each state of India will determine the supervisory and disciplinary mechanisms that apply to the notarial profession. Notaries are required to act in good faith and in full integrity at all times; this obligation is directed to both the State and their colleagues. Professional secrecy is a value that notaries are expected to observe while discharging their duties to their clients. Notaries must also maintain impartiality, which might involve providing appropriate assistance to a party that is disadvantaged or in a vulnerable position. The efficient and effective discharge of professional duties involves an international notarial system of reciprocity. The choice of notary is a matter for each individual party requiring notarial services. A notary is bound by the professional standards of ethics, according to both local and international law. [§§ 16-22]

The above is a summary of the original report, which was published in the Revista Internacional del Notariado issue 122 on pages 95-98. For more information in relation to this document, readers are strongly encouraged to obtain a copy of the paper as it was originally published from the UINL.

Notarial services in Sydney can be offered strictly by appointment, by contacting us via the online form on this website. All inquiries are answered as soon as possible by a Sydney Public Notary who will be happy to discuss what your requirements are, what kind of notarial act is appropriate and what steps are involved to obtain proper notarisation. In some situations, individuals and businesses can be attended to by a mobile notary at their office or a mutually convenient location. For more information on how we can help, see our Services and Examples pages.

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Revista Internacional del Notariado (No. 122, 2016)

The 122th issue of the Revista Internacional del Notariado, published by the Unión Internacional del Notariado (International Union of Notaries) was received earlier this year. The former President’s message drew on the legacy of the notariates of Latin America in creating a universalised community of notaries spanning the globe. In his editorial, Águeda L. Crespo asks “Where do we lean as leaders: towards integrity or isolation? What do we expect from our leaders?” Recognising the tension between the duty to honestly represent one’s constituents on one hand and the imperatives of leadership, he suggests that what is needed is a balance between “conviction and responsibility.” The report claims that the rise of isolationism — referring specifically to Brexit as an example — is the result of a failure of leadership in transmitting the values of integration and properly advocating for greater universalisation, presumably of legal systems that interact on the global arena. [p. 19] “Hetrogeneity and diversity of opinions are enriching, sicne only from them does the fundamental sense of things emerge” he writes, adding that “We need to put aside all economicist [sic] and utilitarian analysis both on the law and peer relationships, and resume the path towards community interests, which interests have been sustained with guarantees, as a banner, by UINL’s founders.” [p. 20]

Most of the content of the journal is not in English, however the following content which may be of interest to the Sydney notary public has been translated and is included in the publication:

  • Letter from the President, Daniel-Sedar Senghor, “To The Presidents of the Member Notariats and to the Councilors of the UINL” (Dakhar, Yemen: 2 December 2015) [pp. 39-40]
  • Recommendations: 2nd Afro-American Conference “Hugo Pérez Montero” – the Legal Certainty of the Investments Between Africa and America – “Building a Bridge of exchanges and services over the South Atlantic Ocean” (Rio de Janeiro, Brasil: 28-29 September 2015) [pp. 41-42]
  • Héctor Galeano Inclán and Fernando Trueba Buenfil, “Commission of Notarial Deontology” (Istanbul, Turkey: 15-18 May 2015) [pp. 51-52]
  • Maria de los Reyes Sanches Moreno with Igor Medvedev, Fotini Koutkou, Sabrina Belloni and Marc Geleijns, “European Affairs Commission (EAC): The Evolution of Family Law in European Countries and its Consequences for Notary Law” (November 2015) [pp. 75-83]
  • Shidheswar De, “Fundamental Principles of the Indian Notarial System” (Bengal, India: 12 April 2016) [pp. 95-98]

The short piece by Shidheswar De, President of the Indian Notarial Association, on the principles of the Indian notarial practice may be of interest to the Commonwealth notary. Time and resources permitting, a review of some of the above articles may be publish here in the near future.

Should you be looking for a Sydney Notary Public, contact us on the form provided here to discuss what we can do for you. We are a busy practice but endeavour to respond to all contacts within 24 hours. In some circumstances, a public notary in Sydney can come directly to your place of business or arrange a mutually convenient place where notarial services can be provided. For more information about what we can provide, see our Examples of Notarisations and Certificates and Services Offered sections of this website.

The Notarial Act – An Instrument of Investment Security

Revista internacional del notario 119The following is a summary and commentary of a paper that appeared in issue 119 of Revista Internacional del Notariado by Lionel Galliez.*

As mentioned in our brief report concerning the publication of that issue, Lionel Galliez was the recipient of the André Ducret Award for the best scientific contribution to the notarial practice in the 2012 Congress of the Unión Internacional del Notariado (International Union of Notaries) for the presentation of his illuminating paper.

It should be noted from the outset that Lionel Galliez’s paper is drafted from the perspective of the civil law notary. He states that:

The notarial act does not influence the profit  that an investor will make, but it does help reduce and control the risks. Risk control thus forms the basis on which to assess what the notarial profession can offer investors and to distinguish it from the competing models proposed in traditionally Anglo-Saxon nations.” [p. 225]

Reflecting on a recent report from the French notarial profession, Galliez suggests that – based on an “economic analysis of the law” – the notarial profession “guarantees investors optimal legal certainty” [ibid.]. Galliez therefore embarks on a comparative analysis between the notarial framework of civil law and common law jurisdictions in relation to what they can offer investors business interests. His paper focuses on three types of contracts [p. 228]:

  • Sale of property;
  • Loan agreement; and
  • Lease agreement.

In light of the broad ranging contractual typology above, investors will encounter different kinds of legal risks which are associated with different kinds of agreements; those agreements will define the particular commercial investments with is being entered into and secured. Galliez states that:

Out of the different kinds of risks, a risk can be described as legal if the threat weighing on the investor results from a legal relationship. The notarial act only has a direct influence over that sort of risk, because controlling legal risks is the core business of notaries.” [p. 225]

Galliez’s analysis reveals that there are four basic legal risks that arise from the consequences of the following [p. 230]:

  • Loss of or delay in the collection of funds;
  • Increase in the costs born by an investor;
  • The depreciation in value of an asset; and
  • Reduction in the value of, or loss of, asset liquidity.

These risks will precipitate financial loss on the part of the investor, and the notarial profession (in civil law countries) can assist in mitigating or avoiding those risks because “the notarial act is much harder to contest than a private writing” [pp. 225-226]. What Galliez is suggesting here is that parties to a notarised agreement will feel more inclined to discharge their respective obligations and duties by reason of the fact that the agreement, once notarised, carries with it greater legal or evidentiary weight; in other words, it is “difficult, and even risky, for them to dispute the value of the instrument” [p. 226].

This is because, as a general proposition, the role and status of the notary public in civil law countries is greater than that of public notaries in common law countries: a civil law notary has what may be perceived from the common law perspective as almost a quasi judicial function; a notarised act, although it certainly can be contested in legal proceedings, is in-and-of itself strong evidence of a fact or proposition. Galliez states that “this quasi-incontestability [of the notarial act in a civil law country] is constituted ab initio, without the need to confirm it by the posteriori intervention of a judge” [ibid.]. Furthermore:

Probative value secures transactions as it makes it easier for the parties to make reasonable forecasts. It reduces  the risks of disputes and is thus a factor of trust which encourages the parties to enter into agreements. The security it provides helps dispel the reluctance of people who fear that the terms of the exchange will be challenged after its conclusion.” [ibid.]

It appears from the text of Galliez’s paper that a notarised agreement in civil law countries is considered to be better evidence (in the event a dispute arises) than an agreement between parties itself. Galliez’s terms of reference is notable: “[t]he mere existence of the title deed [i.e. the notarised act] is a factor that adds value to the asset” [ibid.]. The intervention of a notary into the commercial bargain between parties therefore enhanses the trust  between the operative parties because the terms of the agreement being entered into are “checked” for “balance” and “effectiveness” by a profession that is “strictly regulated and controlled” [ibid.].

The contrasts between the notarial function in civil as opposed to common law countries becomes evident. The civil law notary is expected to provide legal and other advice that the common law notary may be reluctant or even professionally prohibited from tendering to his client. In contradistinction to the notary of the “Anglo-Saxon” jurisdictions, Galliez states that the civil law “notary’s role is not that or a mere attestator; he actively contributes to the effectiveness of the act he certifies” [ibid.]. The notary public in the civil law jurisdiction is effectively involved in the creation or amendment of the terms and provisions of the commercial relationship between the parties who seek his services.  As such, the notarial act will bring with it the legitimising force of an impartial authority whose intervention imports a higher level of probaty to the terms of that relationship.

* The paper, as published in the aforementioned journal, can be cited according to the following convention: Lionel Galliez, “The Notarial Act – An Instrument of Investment Security” Revista Internacional del Notariado No 119 (December 2013) pp. 223-230 (English Translation); Lionel Galliez, “L’Acte Authentique Notarial au Service de la Sécurité des Investissements” Revista Internacional del Notariado No 119 (Décembre 2013) pp. 215-222 (French translation); Lionel Galliez, “El Documento Notarial al Servicio de la Seguridad de las Inversiones” Revista Internacional del Notariado No 119 (Diciembre 2013) pp. 207-214 (Spanish translation). The above is a summary of some key facts and salient points of interest; for more information about the issues discussed here, readers are strongly advised to refer to the original paper, as published.

Additional Comment

The civil law notarial system described by Galliez does appear to have its advantages insofar as it creates an environment in which contractual relationships between parties are ‘reviewed’ – so to speak – by an impartial professional with a view to achieving an equitable relationship between the parties. Indeed, this could be achieved in common law jurisdictions by way of obtaining independent legal advice on a contract (and advice from any other professional, such as an accountant, financial planner etc.). However, in the event that a term of the contract was ever to be disputed in court, such legal advise would not confer the weight of a “title deed”, in Gallez’s language, vis-a-vis the contract, despite the high professional standards expected of legal practitioners by the public.

Obtaining legal advice in the common law jurisdictions does not have the same effect as having a contract notarised by a civil law notary. Galliez’s paper therefore provides a useful comparison of the notarial profession between civil and common law countries. The common law jurisdictions do not have a comparable institution that can provide the certainty and impartial assessment of proposed commercial transactions in the same way that might be available through the operation of a notary in civil law jurisdictions.

To this reviewer, the difference between the civil and common law systems appears to be a function of a different legal culture in which similar commercial interests are mediated – and the legitimacy of same is established – through different institutional norms: whereas in the common law system these interests are pursued in the private sphere and only become subject to external legal authority if and when a dispute arises between parties, the civil law jurisdiction seems to favour a paradigm whereby private interests are ‘legitimised’, as it were, through the intervention of an external quasi-legal authority before duties, obligations and responsibilities inter partes in fact arise.

For more information on what a Sydney Notary Public may offer to a local or overseas business that wants to secure its commercial interests, see our section on Services Offered.  Notary Public in Sydney may, in some situations and depending on the location of the client or his business, be able to visit a client’s office to provide notarial services. For more information on the extent of our mobile notary, see our brief on Availability. More information for potential clients can also be found at Client Conferences and Distance Instruction as well as Foreign Language Documents.

Revista Internacional del Notariado (No. 121, First Semester 2015)

Revista internacional del notario 121The 121th issue of the Revista Internacional del Notariado, published by the Unión Internacional del Notariado (International Union of Notaries) has been released. This issue contains few entries in English however those that are included may be of particular interest to the Australian notary public, such as the presentation concerning the cross jurisdictional use of notarial acts within and between common law and civil law countries.

This issue opens with a few words from the ONPI’s President Águeda L. Crespo, who, speaking of the role of public notaries throughout the turbulent and divided world, emphasises that “Legislative comparison is currently more and more legitimate as an actual practical necessity for modern legal agents.” He states that the intention of the journal is to provided different scenarios to international notaries that highlight the difficulties and opportunities that may arise in the present climate, so that they may obtain a “global vision of a different approach to each legal situation arising before them.” He adds:

Consequently, the current positive law of any given country consists more and more of supra national rules, and only comparative and international law studies will give us a more complete understanding of the subject matter.

The two other articles that have been provided in English concern problems encountered with the circulation and use of notarial certificates across borders and between jurisdictions (particularly concerning the lack of any universal definition of what constitutes or what is a notarial act) and a report on the disciplinary framework governing the notarial practice in various states and legal jurisdictions:

  • Dr. Jeffrey A. Talpis, “The Cross-Border Circulation of Notarial Acts”, Presentation to the Australian and New Zealand College of Notaries, October 2014. [pp. 87-99]
  • María Cristina Planells (rapporteur), “The Disciplinary System in the European Notariat”, Report of the European Affairs Commission, 22-23 November 2013. [pp. 127-135]

Notaries in Sydney Australia may find the presentation of Dr. Talpis of particular interest, as would government policy analysts and law reformers who would benefit from the analysis of how different municipal legal codes treat notarial certificates. A review of the above articles may be published in a future post, time and resources permitting.

For more information about how we can notarise your international documents (i.e. documents that will be used overseas) contact us on the details provided here to arrange an appointment with a Sydney notary public. Foreign documents – forms, deeds, agreements or other materials that are to be adduced before foreign courts of administrative bodies – can be notarised locally for use use outside of Australia. In some circumstances, a public notary in the greater Sydney region may be able to come to your office to provide his services (see our section on local Availability for more information).

Revista Internacional del Notariado (No. 120, First Semester 2014)

Revista internacional del notario 120The 120th issue of the Revista Internacional del Notariado, published by the Unión Internacional del Notariado (International Union of Notaries) has been released. The issue contains an editorial by Águeda L. Crespo, the president of the Permanent Notarial Office for International Exchange (ONPI) for the legislature of 2014-2016 and an introductory comment by Daniel-Sédar Senghor, the president of the International Union of Notaries.

Á. L. Crespo outlined how his office has been opened to collaboration with other country jurisdictions willing to work with the ONPI, restructured the work areas and inaugurated the new online “ONPI News” service. The Commission and Working Groups’ reports and activities have also been made available online for consideration and review. An announcement was also made in relation to the official naming of the ONPI library in honour of the past president, Rafael Gómex Ferrer Sapiña. Finally, the president of the ONPI reflected on the utility and future of the print edition of the Revista Internacional del Notario before quoting André Gide:

In the presence of certain books, one wonders, who will read them? And regarding certain people, one wonders, what do they read? Finally books and people met each other.

D.-S. Senghor raised a concern regarding the apparent challenges facing notaries world-wide, where their “essence” and “function” is being questioned. He urged notaries to be involved in the working groups and play an active role in the profession:

We have to rebuild the belief we need to have of the utility of our profession and that our function is meaningful only through the service it renders.

The remaining English language components of this issue include:

  • “Some Thoughts Expressed at the Opening Ceremony in Bern, Switzerland.” [pp. 61-62]
  • Juan Ignacio Gomez Villa, “Normas de Organizacion de la UINL y su Significado en el Notariado Mundial” concerning the need for deontological rules tailored for different notaries as well as the Code of Deontology. (21 December 2014) [pp. 69-77] (Only Abstract available in English)
  • Dennis D. Martínez Colón, “Titulacion: Notas Sobre Conceptos Fundamentales y Proyectos de la UINL” concerning the concept of property entitlement and the importance of assessing the notarial document. (18 July 2014) [pp. 101-105] (Only Abstract available in English)
  • Pierre Becque, “Le Nouveau Code Civil Roumain: Les Similitudes Entre le Code Civil Français et le Nouveau Code Civil Roumain en Matiere de Regimes Matrimoniaux” concerning the reform of the Romanian Civil Code as to the recent amendment to the community property regime in matrinonial cases, with a comparative analytical approach to the French legal regime. (undated) [pp. 115-124] (Only Abstract available in English)
  • Luc Weyts, “Quelle est la Valeur d’un Act Notarié à l’étranger? A Propos de la Circulation de nos Actes au Sien de l’Europe” concerning the circulating of notarial deeds and court judgments throughout Europe, in particular to mutual acknowledgments which vitiate the need to obtain apostille. (drafted 4 June 2014) [pp. 131-137] (Only Abstract available in English)

Revista Internacional del Notariado (No. 119, December 2013)

Revista internacional del notario 119The 119th issue of the Revista Internacional del Notariado (RIN), published by the Unión Internacional del Notariado (International Union of Notaries) has been released. This current issue contains the last message form the president/director of the editorial committee Leon Hirsch in the present legislature term. He writes that:

It has been a long time since the first scribes began, still in an unsystematic way, to perform an activity that has been perfected and adjusted throughout the centuries to support an important social imperative: to provide certainty to the most important transactions and acts.

L. Hirsch discussed the importance of the recent 27th International Congress of Notaries which was held in Lima, 9 through to 12 October 2013, during which current issues and recognised problems of the notarial practice were discussed and analysed, solutions and conclusions were proposed, and guidelines were articulated to ensure that the practice of notaries will be held to the highest standards of competence and efficiency.

The present issue of RIN also documents the various papers that were delivered at the Congress. Anglophone readers will pleased to note that English translations of several of these have also been included in the pages of RIN. These include the following:

  • “Reflections of the Notariat on Family Law and the Law of Succession in light of new social relations” [pp. 49-50]
  • “Legal certainty in the property market: The need for regulatory instruments” [pp. 53-54]
  • “Conclusions Forum International” [p. 87]

Additional English content includes an extensive article on the “Deontology and Rules of Organisation for Notaries” [pp. 135-147] as well as several resolutions and recommendations, including:

  • “Theme ‘Development of Notarial Duties'” (adopted by the general meeting of member notaries, 1st ordinary session of the 2011-2013 legislature, Cartagena de Indias, Columbia, 2-3 December 2011) [pp. 161-162]
  • Resolution No. 2 “The Public Authority and the Status of Notary” (GM-GC Algires, 18-19 October 2012) [pp. 171-173]
  • Resolution No. 3 “Theme Economic Usefulness of Notaries” (GM-GC Algires, 18-19 October 2012) [pp. 183-186]
  • Recommendations adopted by the general meeting of UINL Member Notariats in Lima to the national Chambers and/or national Councils of UINL notariats regarding the role of the notary in the aging society: “Aging Society a Challenge for the Notary” (8 October 2013) [pp. 195-198]

Finally, the André Ducret Award for the best scientific contribution of the previous Congress was presented to Lionel Galliez for his work “The Use of Notarial Documents to Secure Investments”. His paper “The Notarial Act – An Instrument of Investment Security” is translated into English in the present volume of RIN [pp. 223-230].

A review of the above articles may be published in a future post, time and resources permitting.