Notary’s Civil Liability: Important Issues
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Abstract
Notaries, similarly to solicitors, doctors, auditors, architects and other professionals, face higher risks of causing damage to third parties while conducting their professional services. That’s why notaries are subject to higher attention and accuracy standards in their work. The professional civil liability insurance is outlined by legislation as one of the main pre-requisites for a notary to pursue its professional activity. The article aims at distinguishing the subtleties of notary’s civil liability conditions taking into account the civil liabilities tortious nature. To achieve the aim, the civil law doctrine is taken as a basis for studying the court practice and afterwards conclusions are presented. A notary becomes civilly liable when four major conditions are present: damage, illegal action, causality and notary’s fault. The notary is subject to full liability principle, which means he/she also would have to cover the income the client would have received if not the illegal action by the notary.
Having studied application of Article 6.246 and Article 6.263 of the Civil Code, the author draws the conclusion that illegal actions by the notary can only be violations of the positive (written) law.
The common presumption of guilt stated in Article 6.248 of the Civil Code is inter alia applied to notaries. Application of the bonus pater familias in respect of the notary does not only point to the fact that a notary must be a qualified lawyer to the extent he/she would reject contracts contradicting the law by their form or contents, but also a thoughtful and attentive lawyer to the extent he/she would mind all circumstances occurring upon conclusion of a contract: appearance of the parties, their behavior and arguments, documents, signatures, and if there is a slightest doubt, he/she should endeavor to disclose the truth. The statement that notaries are subject to higher accuracy and attention standards in their work are applicable to the extent that each notary is a lawyer, but not to the extent that a notary is a person mastering knowledge and skills in other special areas.
The statement that the compensation of damage under civil liability insurance is possible even if tortious liability is not applicable should be supported only taking into account peculiarities of insurance relations.
Having studied application of Article 6.246 and Article 6.263 of the Civil Code, the author draws the conclusion that illegal actions by the notary can only be violations of the positive (written) law.
The common presumption of guilt stated in Article 6.248 of the Civil Code is inter alia applied to notaries. Application of the bonus pater familias in respect of the notary does not only point to the fact that a notary must be a qualified lawyer to the extent he/she would reject contracts contradicting the law by their form or contents, but also a thoughtful and attentive lawyer to the extent he/she would mind all circumstances occurring upon conclusion of a contract: appearance of the parties, their behavior and arguments, documents, signatures, and if there is a slightest doubt, he/she should endeavor to disclose the truth. The statement that notaries are subject to higher accuracy and attention standards in their work are applicable to the extent that each notary is a lawyer, but not to the extent that a notary is a person mastering knowledge and skills in other special areas.
The statement that the compensation of damage under civil liability insurance is possible even if tortious liability is not applicable should be supported only taking into account peculiarities of insurance relations.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
