THE ITALIAN NOTARY PUBLIC

THE ITALIAN NOTARY PUBLIC

The "Notary" or "Notary Public" is a professional figure that has existed for centuries and is constantly evolving, differentiating today in the "civil law" countries from the "common law" ones.

In countries with a "common law" legal system, such as England, the notary has the main function of authentication signatures, although today many are also "solicitors", experts in law.

In countries with a "civil law" legal system, such as Spain, Italy and France, the notary has more functions and responsibilities. In France, the notary is defined as the "law specialist with a public authority mission who prepares contracts in authentic form on behalf of his clients" (Notaries of France website - www.notaires.fr). In Spain, the notary is "a public official of the State who must provide citizens with the legal security that the Constitution promises" and, at the same time, "is a legal professional who practices in competition", with maximum independence; he or she is a professional, with a high level of preparation, close and impartial to the client, who helps him, advises him and guarantees that his/her contract or company complies with the law (Spanish "Consejo General del Notariado" - www.notariado.org).

In Italy, the notary public has the same maximum guarantee function, whose functions and role are analyzed below, with the main objective of making most readers understand the essential characteristics of the notary and the reasons for the high degree of guarantee. The notary is at the same time a public official and a “freelancer”, and unlike other professionals, such as lawyers and accountants, he/she is impartial, defending only the correct application of the law and protecting all the parties at the same time.

 Notaries are public officers set up to receive legal documents (for instance purchase agreement, power of attorney, transfers of shareholdings, company meeting minutes) and wills, to attribute “public faith” to them, to keep the originals. The notary is also granted to receive declarations of acceptance of inheritance; proceed, following a delegation from the judicial authority, to affix and remove the seals in the cases provided for by law, to the bids and to the judicial divisions and to all the related operations.

The main function of the notary is the so-called "anti-trial function", being authorized to give "public faith" to the documents and having to comply with a series of limitations expressly established by law, which distinguish his high degree of security and protection of the validity of the documents received by him (so called “deed” or literally translated “notarial act/deed”).

Before analyzing the limits, it is essential to specify what is meant by "public faith". Many people confuse this feature with the ability to view and request a copy of all the documents received by a notary as "public documents". This is absolutely not the case. "Public faith" refers to the degree of consideration that the public act has in a possible trial. Normally an agreement without the intervention of the notary can be the basis of a judicial process, but the counterparty can deny its signature or can object that it was not fully capable of understanding and wanting at the time of the conclusion of the contract. The “public document”, on the other hand, fully proves, up to a false complaint, of the origin of the document from the public official who formed it, as well as the declarations of the parties and other facts that the public official certifies occurred in his presence or made by him, according to what is expressly established by article 2700 of the Italian civil code, thus making it more difficult to challenge the act for lack of will and ability of the parties.

The notary cannot receive or authenticate deeds if they are expressly prohibited by law (Italian and European law), or manifestly contrary to morality or public order. He may also not receive or authenticate deeds if his wife or relatives are involved as parties, except in the case of a secret will, and with the exception of cases for public auction.

The notary is obliged to perform his activity whenever required, within the above limits, but he cannot exercise his activity outside the territory of the region (Italy is internal divided in 21 regions) in which he is located or the district of the Court of Appeal in which the headquarters are located, if that district includes several regions. Outside that territory, he is a common citizen, not being able to attribute "public faith" to the act.

The particularity of an act received by the notary, in addition to checking the full capacity of the parties, to comply with the law, is his attention drafting the act itself and the will of the parties. The “notarial deed” must be received by the notary in the presence of the parties and, in the cases provided for by law, of two witnesses. For instance, witnesses are necessary in the event of a donation, if one of the parties does not know or cannot read and write or a part or the notary requests its presence.

The necessary physical presence of the parties in front of the notary is another element that differentiates the notary in "civil law" legal systems from those of "common law", where it is sometimes allowed to deposit the signature in advance and then authenticate a series of deeds without the necessary physical presence of the party before the notary, which considerably reduces the total of the real validity of the deed.

The minutes of the shareholders and corporate bodies meetings are an exception. Moreover, for those acts, due to the global pandemic situation, the Italian legislator, at the beginning of 2020, admitted the remotely notarial report of a corporate meeting, via teleconferencing systems, also notwithstanding any prohibitions contained in the company statute.

In Italy, the notary is also required to investigate the will of the parties, and to take care of the complete compilation of the deed under his own direction and responsibility.

The notary must be sure of the parties' personal identity and can reach this certainty, even at the time of the attestation, by evaluating all the elements capable of forming his conviction, having to go beyond the mere identity document.

The law imposes a series of obligations on the notary in drafting documents, in order to guarantee the maximum degree of certainty. In general, the notarial deed must bear the header "REPUBBLICA ITALIANA" (translation: “ITALIAN REPUBLIC”). The act/agreement/deed must contain:

- the indication in letters of the year, month and day, the Municipality and the place where it is received.

- the name, surname and indication of the residence of the notary and of the notary district in whose role he is registered.

- the name, surname, place and date of birth, domicile or residence, the tax code of the parties, and of the witnesses. This also applies to any representatives. In this case, the power of attorney must be attached to the deed in the original or certified copy of the original, unless the original or the copy is found in the deeds of the notary deed, or is registered in the business Register held by the Chamber of Commerce (https://www.registroimprese.it/).

- the declaration of certainty of the parties' personal identity.

- the indication, at least for the first time, in letters in length, of the dates, sums and quantity of things that are the object of the deed.

- the precise designation of the things that are the object of the act, so that they cannot exchange with others. When the act concerns real estate, these will be designated, as far as possible, with an indication of their nature, the Municipality in which they are located, the cadastral data, and their boundaries, so as to ascertain the identity of the real estate.

- the indication of the documents attached to the deed.

- the mention that the notary has read the deed, and the attached documents.

- the mention that the deed was written by the notary or by a trusted person, with an indication of the sheets of which it consists and of the written pages.

- the subscription with the name, surname of the parties, the witnesses (if required) and the notary. If some of the parties did not know or could not sign, the cause must be declared.

- the indication of the time (hour and minutes) when the will is signed.

- in the deeds contained in several sheets, the subscription in margin of each sheet of the parties, the witnesses and the notary, except for the sheet containing the final subscriptions. 

Another feature that is often poorly understood and misunderstood is the function of keeping the documents by the notary. The notary cannot release the originals of the documents received to anyone, and cannot be obliged to present or deposit them, except in the cases and in the ways determined by law.

In addition to the cases determined by other laws, the notary, with the exception of the foregoing, may only issue original documents to the parties, which contain powers of attorney for the execution of a single business.

The law requires the Notary to "give publicity" to certain deeds, through registration or transcription in the respective public registers (eg real estate deeds in the "Real Estate Registers", corporate deeds in the "business register") from which registers it is possible to obtain a copy of the related deeds, but, in addition to these obligations, the notary is not required to issue anyone with a copy of the deed.

The notary can issue to the parties, and in the other cases provided for by law, copies, certificates and extracts of the documents kept with him. The copies, extracts and certificates must have the date of issue at the end, be authenticated by the notary with his signature, with the seal and with the declaration that copies and extracts are conform to the original.

The notary is also “substitute tax obliged” for indirect taxes due in relation to the deeds received. Being a tax substitute implies the notary has a great knowledge of the rules on “indirect taxes”, which include VAT and taxes related to real-estate trade. The main complaint after receiving a quote (and the following invoice) from a notary is the high amount, but it must be considered that you are also paying those taxes to the notary, which he will pay to the State on your behalf.

The maximum guarantee that the notary does correctly fulfill this obligation is given precisely by the difficulty in becoming part of the notarial category, by the high standards of professionalism required, by the limited number of notaries, which make it a category with higher earnings than the average of others professionals, but which also give greater certainty of the difficult corruptibility of the notary. They are also under a strict control by the State, through the competent Notarial Council (https://www.notariato.it/) and the notarial archives set up at each Court.

For greater customer protection, the “national council of notaries” (national order representing all notaries, in Italian “Consiglio Nazionale del Notariato” or "CNN") provides collective forms of insurance for civil liability deriving from the exercise of the notarial activity. If said collective forms of insurance are missing, each notary provides for the stipulation of an individual insurance policy for civil liability deriving from the damage caused in the exercise of the professional activity. 

To avoid incurring false notaries, it is always advisable to check their existence through the website of the national council of notaries (https://www.notariato.it/it/trova-notaio).

The modern digital age has increased the possibility of falsifying acts. To avoid frauds, it is always advisable to ask for a copy of a notarial deed digitally formed by the notary. It will be necessary: (1) ask for a digital copy of the deed signed by the notary with a digital signature; (2) check the text of the document and the validity and correspondence of the digital signature of the notary through a control system made available by CNN online (https://vol.ca.notariato.it/it).

 Regarding the professional fee or retribution, until 2012, the notary had the right, for each deed, copy, extract or certificate, and for each other operation carried out in the exercise of his profession, to be paid by the parties by way of honorarium determined by legal table, with values fix by the law. The notary was obliged to make him pay a certain amount as a fee based on the value of the deed.

The Italian law number 1 of 24 January 2012 repeal those legal values, to conform Italian law to the principles of free competition required by European legislation. Each notary is therefore free to draw up a quote without respecting any legal values.

However each notary must give to the customer a quote, in written or digital form, including the degree of complexity of the assignment and providing all useful information about the charges that may be expected from the moment of the assignment until the conclusion of it, and must also indicate the policy data insurance for damages caused in the exercise of the professional activity.

Davide G. Daleffe