The Jurisdiction of the Notary
A notary is a public official authorized to draw up deeds both between living persons (i.e. sales, exchanges, divisions of property, loans etc) and last will and testaments, witness them publicly, keep and issue copies, certificates (i.e. summaries) and extracts (i.e. partial copies) (article 1 of the notarial law).
A deed drawn up by a notary is a public document, because the notary is authorized to bear witness to it (hence he is a public official) and as such carries particular legal force: statements made in a notarial deed (e.g. that the document has been read to the parties, or that a person has made or signed a declaration in his presence) provides full evidence (in other words must be considered as true, even by a judge), unless falsification has been proved.
The law calls for notarial deeds for those events and contracts for which it is necessary to guarantee the maximum degree of legality in terms of identity of the parties and conformity to their wishes, because such acts are considered significant: for their social and economic content or complexity (e.g. sales, divisions of property, loans and other real-estate contracts, deeds of constitution of commercial companies and modifications to social status, constitution of associations for the purpose of becoming juridical entities, etc); for the effects they may have upon the civil status of a person (e.g. recognition of a natural child); and for the public interest in the expression of a person's will and its accurate rendering in legal language (e.g. wills, donations).
The choice of the notary
The notary must be chosen by the parties by mutual agreement or, failing agreement, by the party liable for the payment of fees and reimbursement of expenses advanced by the notary.
In the notarial acts in public or involving banks, if the cost of the deed is not dependent on them, the choice is put rule of the notary to the other party, without good reason. The choice of the notary should not be imposed by other professionals, real estate agents, brokers, etc., They can be recommended only if the client requests it. The choice of the notary should be based on a relationship of trust. As a rule, should be taken into account: the time that the notary personally dedication to customers to ensure their will and the practical purpose they wish to achieve, its ability to advise clients and guide them so that the form and content of deed are those that best achieve their interests, and in view of the practical results they wanted, the way in which he has practiced and observes the law and the code of ethics: in particular, its fairness, diligence and preparation professional, as well as the efficiency of the organization of his study. The choice of the notary should not be determined exclusively by the cost of providing notary. The notary fee is a fee relatively rigid: why the fee for the preparation of the deed does not vary whatever the chosen notary; instead may vary, but modestly, fees and notary fees required for preparatory activities and some obligations after the deed. They can also vary, even significantly, the fees for the consultancy and other professional services not directly related to the notarial deed. For the purposes of a comparison of costs is necessary to take into account the manner in which the various notaries carry out their activities and in particular the time they devote to the personal relationship with clients. In any case, it should be considered that, for a professional performance ( especially in cases of greater complexity), the cost basis is not the best one to choose.
The personal relationship between the notary and the parties
By law, "it is the notary who investigate the will of the parties and personally direct the full compilation of the act" (Article 47 of the Notaries Act).
The notary must investigate the intentions of the parties in-depth and comprehensive, with questions and exchange of information designed to investigate the motives and the possible modifications of the will (code of ethics appr. Since Cons. Naz. Not. 24/02/1994 The ).
Therefore, the relationship between the client and the lawyer begins to rule and prior to the conclusion of the reading of the deed, to allow the customer to set out to complete his will and the notary to understand, and the notary has the duty of directing personally the parties in the choice between the documents and clauses that you can use to achieve the fullest extent practical purpose that the parties propose, however, adjusting to the mandatory rules of the law (ie, rules which can not be waived ).
The investigation of the intention of the parties may also be performed at the time of receipt of the authentication of the public or private writing .
The notary may employ staff in dealing with the parties and meets the work of its employees, who work under his direction anyway. In any case, the lawyer can not delegate to others the investigation of the intention of the parties who have the right to manifest more and to him personally.
Even when the document is drawn up in accordance with a draft prepared by the parties or one of them (eg, bank loan agreement) or other (eg, power of attorney prepared by a motor agency), the notary must explain to the parties the contents and legal effects of the act and ensure that they reflect the will of all parties.