“The more the notary, the less the judge”.
With these words a famous jurist (Carnelutti) defined the essential function of the notary
(i.e. the most important activity that the law entrusts to the notary).
This means that the more the notary does his job well – that is, he ascertains and interprets the will of the parties (i.e. the people) who conclude a contract and drafts the relevant clauses in compliance with the law and with clarity – the less there is need to appeal to the judge (i.e. the lower the risk that the notarial deed is a source of lawsuits). And this is why the notary cannot receive documents expressly prohibited by law (art. 28 notary law) and
has the obligation to be certain of the identity of the parties (art. 49 notary law) and to personally investigate their will (art. 47 notarial law).
These are particularly severe obligations whose failure to comply entails, in addition to civil liability, also the disciplinary liability of the notary (who can be suspended and, in the most serious cases, dismissed), and can be a source of criminal liability (for the crime of forgery in public). The notary is a public official established to receive inter vivos deeds (i.e. sales, exchanges, divisions, mortgages, etc.) and last wills (i.e. testaments), give them public trust, preserve them and issue copies, certificates (i.e. summaries) and extracts (i.e. partial copies) (art. 1 notarial law).
The deed drawn up by the notary is a public deed, as the notary is authorized to attribute public trust to it (therefore he is a public official). As such it has a particular legal efficacy:
what the notary certifies in the notarial deed (example: that he has read the deed in front of the parties, or that a person has made or signed a declaration before him) is full proof (i.e. must be considered true, even by the judge), unless the crime of forgery is established.
A notarial deed is required by law for those deeds and contracts in which there is the need to guarantee the maximum degree of legality, the identity of the parties and the conformity to their will, because these are considered of great importance:
– for their economic-social content or for their complexity (example: sales, divisions, mortgages and other real estate contracts, articles of incorporation of commercial companies and amendments to company statutes, constitutions of associations that intend to obtain legal personality, etc.);
– for the effects they produce in relation to the civil status of a person (example: recognition of a natural child);
– for the public interest in the free expression of a person’s will and its precise translation into legal language (example: will, donation).
The notary is a public official to whom the State entrusts the power to attribute public trust, i.e. the value of legal proof, to the documents he stipulates. Therefore everyone – including the judge – must presume to be true what he certifies, unless the crime of forgery is established.
The public deed proves:
the origin of the document from the public official who created it,
the declarations of the parties contained therein,
other facts that the public official claims to have occurred in his presence or even to have
been committed by him.
For this reason, the notary must personally ascertain what the will of the people who turn to him is and the purpose to be achieved, in order to prepare the most suitable and convenient deed, compliant with the law. To this end, the consultancy activity of the notary before signing the deed is essential.
In the exercise of his function, the notary must be, by law, independent and impartial: he must therefore protect the interests of all the contracting parties equally, regardless of who gave him the task. He must, therefore, abstain whenever he finds himself in a conflict of interest (for example, when his relatives participate in the act). He therefore carries out a preventative legality control function. The notary can resort to different and alternative contractual solutions and, in compliance with the Principles of notarial ethics in force from time to time, has full freedom of choice in the concrete performance of his activity.
The Protocols relating to notarial activity, prepared in the past by the National Council, have been definitively approved and only minimally in force, while the others currently constitute only food for thought, without any external value and without any binding scope for the individual notaries.
The notary has the duty to enforce the laws and cannot and must not receive acts prohibited by law. Thanks to the checks carried out by the notary in Italy there is essentially no litigation on real estate transactions (only 0.003% creates litigation).
Furthermore, thanks to the abolition in 2000 of the court’s approval control and the consequent assumption by the notary of the responsibility relating to the establishment of the new company, a joint-stock company, which until 2000 required approximately 150 days from its establishment to its effective operation, today it can be operational on the same day as the notarial deed or at most in a few days.
Finally, the notary collects on behalf of the State the taxes connected to all deeds (registration, mortgage, cadastral taxes, etc.) paying every year, through its IT network, several billion euros of indirect taxes and capital gains without any premium paid by the State, even if not collected by the customer.