notary public

Overview

Notaries are appointed by a government authority, such as a court, governor, county commissioners, or lieutenant governor, or by a regulating body often known as a society or faculty of notaries public. For lawyer notaries, an appointment may be for life, while lay notaries are usually commissioned for a briefer term (often 3 to 5 years in the U.S.), with the possibility of renewal.

In most common law countries, appointments and their number for a given notarial district are highly regulated. However, since the majority of American notaries are lay persons who provide officially required services, commission numbers are not regulated, which is part of the reason why there are far more notaries in the United States than in other countries (4.5 million vs. approx. 740 in England and Wales and approx. 1,250 in Australia and New Zealand). Furthermore, all U.S. and some Canadian notarial functions are applied to domestic affairs and documents, where fully systematized attestations of signatures and acknowledgment of deeds are a universal requirement for document authentication. In the U.S., notaries public do not authenticate documents in a traditional sense: instead, they authenticate that the signature(s) on a document belongs to the person(s) claiming to be the signer(s), thus ensuring trust among interested parties. By contrast, outside North American common law jurisdictions, notarial practice is restricted to international legal matters or where a foreign jurisdiction is involved, and almost all notaries are also qualified lawyers.

For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarized before they can be used or officially recorded or before they can have any legal effect. To these documents a notary affixes a notarial certificate–a separate document stating the notarial act performed and upon which the party(ies) and notary sign–which attests to the execution of the document, usually by the person who appears before the notary, known as an appearer or constituent (U.S.). In the U.S., many documents include the notarial wording within the document, thus eliminating the need for an additional page for the certificate only (i.e., the document is signed and notarized, including application of the Notary's seal). In cases where notaries are also lawyers, such a notary may also draft legal instruments known as notarial acts or deeds which have probative value and executory force, as they do in civil law jurisdictions. Originals or secondary originals are then filed and stored in the notary's archives, or protocol. As noted, lay notaries public in the U.S. are forbidden to advise signers as to which type of act suits the signer's situation: instead, the signer must provide the certificate/wording that is appropriate.

History

Notaries public (also called "notaries", "notarial officers", or "public notaries") hold an office that can trace its origins back to the ancient Roman Republic, when they were called scribae ("scribes"), tabelliones forenses, or personae publicae.

The history of notaries is set out in detail in Chapter 1 of Brooke's Notary (13th edition):

The office of a public notary is a public office. It has a long and distinguished history. The office has its origin in the civil institutions of ancient Rome. Public officials, called scribae, that is to say, scribes, rose in rank from being mere recorders of facts and judicial proceedings, copiers and transcribers to a learned profession prominent in private and public affairs. Some were permanent officials attached to the Senate and courts of law whose duties were to record public proceedings, transcribe state papers, supply magistrates with legal forms, and register the decrees and judgments of magistrates.

In the last century of the Republic, probably in the time of Cicero, and apparently by his adoptive son Marcus Tullius Tiro, after whom they were named 'notae Tironianae' a new form of shorthand was invented and certain arbitrary marks and signs, called notae, were substituted for words in common use. A writer who adopted the new method was called a notarius. Originally, a notary was one who took down statements in shorthand using these notes, and wrote them out in the form of memoranda or minutes. Later, the title notarius was applied almost exclusively to registrars attached to high government officials, including provincial governors and secretaries to the Emperor.

Notwithstanding the collapse of the Western Empire in the 5th century AD, the notary remained a figure of some importance in many parts of continental Europe throughout the Dark Ages. When the civil law experienced its renaissance in medieval Italy from the 12th century onwards, the notary was established as a central institution of that law, a position which still exists in countries whose legal systems are derived from the civil law, including most of Europe and South America. The office of notary reached its apogee in the Italian city of Bologna in the twelfth century, its most distinguished scion being Rolandino Passeggeri generally known as Rolandino of Bologna, who died in 1300 AD, whose masterwork was the Summa Artis Notariae.

Common law jurisdictions

The duties and functions of notaries public are described in Brooke's Notary on page 19 in these terms:

Generally speaking, a notary public [...] may be described as an officer of the law [...] whose public office and duty it is to draw, attest or certify under his/her official seal deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney; to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used, whether by means of issuing a notarial certificate as to the due execution of such documents or by drawing them in the form of public instruments; to keep a protocol containing originals of all instruments which he makes in the public form and to issue authentic copies of such instruments; to administer oaths and declarations for use in proceedings [...] to note or certify transactions relating to negotiable instruments, and to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships." [Footnotes omitted.]

A notary, in almost all common law jurisdictions other than most of North America, is a practitioner trained in the drafting and execution of legal documents. Historically, notaries recorded matters of judicial importance in addition to private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. The functions of notaries specifically include the preparation of certain types of documents (including international contracts, deeds, wills, and powers of attorney) and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange, and the preparation of ships' protests.

Documents certified by notaries are sealed with the notary's seal (which may be a traditional embossed marking or a modern stamp) and are often, as a matter of best practice or else jurisdictional law, recorded by the notary in a register (also called a "protocol") maintained and permanently kept by him or her. The use of a seal by definition means a "notarial act" was performed.

Information on individual countries and territories

Australia

In all Australian states and territories (except Queensland) notaries public are appointed by the Supreme Court of the relevant state or territory. Very few have been appointed as a notary for more than one state or territory.

Queensland, like New Zealand, continues the practice of appointment by the Archbishop of Canterbury acting through the Master of the Faculties.

Australian notaries are lawyers and are members of the Australian and New Zealand College of Notaries, the Society of Notaries of New South Wales Inc., the Public Notaries Society of Western Australia Inc, and other state-based societies. The overall number of lawyers who choose to become a notary is relatively low. For example, in South Australia (a state with a population of 1.5 million), of the over 2,500 lawyers in that state only about 100 are also notaries and most of those do not actively practice as such. In Melbourne, Victoria, in 2002 there were only 66 notaries for a city with a population of 3.5 million and only 90 for the entire state. In Western Australia, there are approximately 58 notaries as at 2017 for a city with a population of 2.07 million people. Compare this with the United States where it has been estimated that there are nearly 5 million notaries for a nation with a population of 296 million.

As Justice Debelle of the Supreme Court of South Australia said in the case of In The Matter of an Application by Marilyn Reys Bos to be a Public Notary [2003] SASC 320, delivered 12 September 2003, in refusing the application by a non-lawyer for appointment as a notary:

As a general rule, an applicant [for appointment as a notary] should be a legal practitioner of several years standing at least. Even a cursory perusal of texts on the duties and functions of a public notary demonstrates that a number of those functions and duties require at the very least a sound working knowledge of Australian law and commercial practice. In other words, the preparation of a notarial act plainly requires a sound knowledge of law and practice in Australia especially of the due preparation and execution of commercial and contractual instruments. It is essential that notaries in this state have a sufficient level of training, qualification and status to enable them efficiently and effectively to discharge the functions of the office.

Brazil

Notaries in Brazil need to pass stringent exams in addition to holding law degrees. Civil life in Brazil relies upon the notary public system heavily. Brazilian notaries public specialize in seven main areas: 1. Civil Records; 2. Notes. 3. Real Estate Records; 4. Credit Notes and Documents; 5. Protest of Credit Notes; 6. Business Enterprises Records; and 7. Central Notaries (a.k.a. "Distribution Notaries). Brazilian notaries have a hybrid nature. They are private but appointed by the Judiciary and are recognized as an official authority ("dotado de fé pública").

Canada

Canadian notaries public (except in the province of British Columbia and Quebec) are very much like their American counterparts, generally restricted to administering oaths, witnessing signatures on affidavits and statutory declarations, providing acknowledgements, certifying true copies, and so forth.

In British Columbia, a notary public is more like a British or Australian notary. Notaries are appointed for life by the Supreme Court of British Columbia and as a self-regulating profession, the Society of Notaries Public of British Columbia is the regulatory body overseeing and setting standards to maintain public confidence. A BC notary is also a commissioner for taking affidavits for British Columbia, by reason of office. Furthermore, BC notaries exercise far greater power, able to dispense legal advice and draft public instruments including:

Notarization – notarizations/attestations of signatures, affidavits, statutory declarations, certified true copies, letters of invitation for foreign travel, authorization of minor child travel, execution/authentications of international documents, passport application documentation, proof of identity for travel purposes

Real estate law – home purchase/sale; business purchase/sale; mortgages and refinancing; residential, commercial, and manufactures home transfer of title; restrictive covenants and builder's liens

Wills and estate planning – preparation and searches of last wills and testaments, advance directives, representation agreements and power of attorney

Contract law – preparation of contracts and agreements, commercial lease and assignments

easements and right of way

insurance loss declarations

marine bills of sale and mortgages

marine protestations

personal property security agreements

Hong Kong

In Hong Kong, the appointment and regulation of notaries public (公證人, often referred to locally as 國際公證人) are governed by the Legal Practitioners Ordinance (Cap. 159). Only solicitors with at least seven years of post‑qualification experience may apply to become a notary public, and candidates must pass the examination administered by the Hong Kong Society of Notaries. The Chief Judge of the High Court formally appoints successful applicants to the office.

Hong Kong is covered by the Hague Apostille Convention (as extended by China’s accession), under which notarial acts may be legalised by apostille for use in other contracting states. However, the Convention does not apply to documents intended for use in Mainland China, where a separate system through China Appointed Attesting Officers (中國委託公證人) is required.

During the colonial era, appointments of notaries public were made directly by the Archbishop of Canterbury in England, exercising powers delegated under the Ecclesiastical Licences Act 1533.

Following the transfer of sovereignty over Hong Kong to the People’s Republic of China in 1997, the system was localised. The power of appointment was vested in the Chief Judge of the High Court of Hong Kong, acting under the Legal Practitioners Ordinance. The professional oversight and examination of notaries have since been administered by the Hong Kong Society of Notaries.

The Hong Kong Society of Notaries, established in 1977, continues to function as the professional body overseeing notarial practice, maintaining standards, and representing notaries within the jurisdiction.

Pursuant to Section 40A of the Legal Practitioners Ordinance, to be appointed as a notary public in Hong Kong, an applicant must satisfy the following requirements—

his name has been on the roll of solicitors continuously for the whole of the period of 7 years immediately before the date of his application for appointment;

he has practised as a solicitor for a period or periods in aggregate of not less than 7 years;

India

The central government appoints notaries for the whole or any part of the country. State governments, too, appoint notaries for the whole or any part of the states. On an application being made, any person who had been practicing as a Lawyer for at least ten years is eligible to be appointed a notary. The applicant, if not a legal practitioner, should be a member of the Indian Legal Service or have held an office under the central or state government, requiring special knowledge of law, after enrollment as an advocate or held an office in the department of Judge, Advocate-General or in the armed forces.

Iran

Notary public is a trained lawyer that should pass some special examinations to be able to open their office and start their work. Persian meaning of this word is سردفتر means head of the office and their assistant called دفتریار. Both these persons should have bachelor's degree in law or master's degree in civil-law.

Ireland

There is archival evidence showing that public notaries, acting pursuant to papal and imperial authority, practised in Ireland in the 13th century, and it is reasonable to assume that notaries functioned here before that time. In Ireland, public notaries were at various times appointed by the Archbishop of Canterbury and the Archbishop of Armagh. The position remained so until the Reformation.

After the Reformation, persons appointed to the office of public notary either in Great Britain or Ireland received the faculty by royal authority, and appointments under faculty from the Pope and the emperor ceased.

In 1871, under the Matrimonial Causes and Marriage Law (Ireland) Amendment 1870, the jurisdiction previously exercised by the Archbishop of Armagh in the appointment of notaries was vested in and became exercisable by the Lord Chancellor of Ireland.

In 1920, the power to appoint notaries public was transferred to the Lord Lieutenant of Ireland. The position in Ireland changed once again in 1924 following the establishment of the Irish Free State. Under the Courts of Justice Act, 1924 the jurisdiction over notaries public was transferred to the Chief Justice of the Irish Free State.

In 1961, under the Courts (Supplemental Provisions) Act of that year, and the power to appoint notaries public became exercisable by the Chief Justice. This remains the position in Ireland, where notaries are appointed on petition to the Supreme Court, after passing prescribed examinations. The governing body is the Faculty of Notaries Public in Ireland. The vast majority of notaries in Ireland are also solicitors. A non-solicitor, who was successful in the examinations as set by the governing body, applied in the standard way to the Chief Justice to be appointed a notary public. The Chief Justice heard the adjourned application on 3 March 2009 and appointed the non-solicitor as a notary on 18 July 2011.

In Ireland notaries public cannot agree on a standard fee due to competition law. In practice the price per signature appears to be €100. A cheaper alternative is to visit a commissioner for oaths who will charge less per signature, but that is only possible where whoever is to receive a document will recognize the signature of a commissioner for oaths.

Malaysia

In Malaysia, a notary public is appointed from amongst the pool of advocates & solicitors (i.e. practicing lawyers) by the Attorney General. To be appointed as a notary public, it is a criterion amongst others, that the advocate & solicitor must be in legal practice for at least 15 years. The fees are regulated by the Notary Public (Fees) Rules 1954.

Perhaps it is germane to consider comparatively to another similar office known as the Commissioner for Oaths (locally knows as a Pesuruhjaya Sumpah), whom are persons appointed by the Chief Justice of the Federal Court of Malaysia under section 11 of Court of Judicature Act 1964 and are principally regulated by the Commissioners for Oaths Rules 2018. Similar to notary publics, Commissioners for Oaths in Malaysia largely administer oaths and attestation (where permitted by specific legislation). The distinction of function between both offices are however drawn from where notary publics are authorized to attest to foreign documents and can also attest to most instruments as a witness, as well as to certify true copy to documents.

New Zealand

A notary public in New Zealand is a lawyer authorised by the Archbishop of Canterbury in England to officially witness signatures on legal documents, collect sworn statements, administer oaths and certify the authenticity of legal documents usually for use overseas.

The Master of the Faculties appoints notaries in the exercise of the general authorities granted by s 3 of the Ecclesiastical Licences Act 1533 and Public Notaries Act 1833. Recommendations are made by the New Zealand Society of Notaries, which normally requires and applicant to have 10 years' experience post admission as a lawyer and 5 years as a Law Firm Partner or equivalent.

Singapore

A Notary Public in Singapore must be appointed by the Board of Commissioners for Oaths and Notaries Public. A Notary Public must be a qualified lawyer who is at least 40 years old, with at least 15 years of experience in active legal practice. The Notary Public is responsible for certifying the authenticity and valid execution of documents.

Sri Lanka

Notaries in Sri Lanka are more akin to civil law notaries; their main functions are conveyancing, drafting of legal instruments, etc. They are appointed under the Notaries Ordinance No 1 of 1907. They must pass exam held by the Ministry of Justice and apprentice under senior notary for a period of two years. Alternatively, attorneys at law who pass the conveyancing exam are also admitted as a notary public under warrant of the Minister. The Minister of Justice may appoint any attorney at law as a commissioner for oaths, authorized to certify and authenticate the affidavit/documents and any such other certificates that are submitted by the general public with the intention of certifying by the commissioner for oath.

United Kingdom

After the passage of the Ecclesiastical Licences Act 1533, which was a direct result of the Reformation in England, all notary appointments were issued directly through the Court of Faculties. The Court of Faculties is attached to the office of the Archbishop of Canterbury.

In England and Wales there are two main classes of notaries: general notaries and scrivener notaries. Their functions are almost identical. All notaries, like solicitors, barristers, legal executives, costs lawyers and licensed conveyancers, are also commissioners for oaths. They also acquire the same powers as solicitors and other law practitioners, with the exception of the right to represent others before the courts (unless also members of the bar or admitted as a solicitor) once they are commissioned notaries. In practice almost all English notaries, and all Scottish ones, are also solicitors, and usually practise as solicitors.

Commissioners of oaths are able to undertake the bulk of routine domestic attestation work in England and Wales. Many documents, including signatures for normal property transactions, do not need professional attestation of signature at all, a lay witness being sufficient.

In practice the need for notaries in purely English legal matters is very small; for example they are not involved in normal property transactions. Since a great many solicitors also perform the function of commissioners for oaths and can witness routine declarations etc. (all are qualified to do so, but not all offer the service), most work performed by notaries relates to international matters in some way. They witness or authenticate documents to be used abroad. Many English notaries have strong foreign language skills and often a foreign legal qualification. The work of notaries and solicitors in England is separate although most notaries are solicitors. The Notaries Society gives the number of notaries in England and Wales as "about 1,000", all but seventy of whom are also solicitors.

Scrivener notaries get their name from the Worshipful Company of Scriveners. Until 1999, when they lost this monopoly, they were the only notaries permitted to practise in the City of London. They used not to have to first qualify as solicitors, but they had knowledge of foreign laws and languages.

Civil law jurisdictions

The role of notaries in civil law countries is much greater than in common law countries. Civilian notaries are full-time lawyers and holders of a public office who routinely undertake non-contentious transactional work done in common law countries by attorneys/solicitors, as well as, in some countries, those of government registries, title offices, and public recorders. The qualifications imposed by civil law countries are much greater, requiring generally an undergraduate law degree, a graduate degree in notarial law and practice, three or more years of practical training ("articles") under an established notary, and the sitting of a national examination, to be admitted to practice. Typically, notaries work in private practice and earn fees, but a small minority of countries have salaried public service (or "government" / "state") notaries (e.g., Ukraine, Russia, Baden-Württemberg in Germany (until 2017), certain cantons of Switzerland, and Portugal).

Notaries in civil law countries have had a critical historical role in providing archives. A considerable amount of historical data of tremendous value is available in France, Spain and Italy thanks to notarial minutes, contracts and conveyances, some of great antiquity which have survived in spite of losses, deterioration and willful destruction.

Civil law notaries have jurisdiction over strictly non-contentious domestic civil-private law in the areas of property law, family law, agency, wills and succession, and company formation. The point to which a country's notarial profession monopolizes these areas can vary greatly. On one extreme is France (and French-derived systems) which statutorily give notaries a monopoly over their reserved areas of practice, as opposed to Austria where there is no discernible monopoly whatsoever and notaries are in direct competition with attorneys/solicitors.

In the few United States jurisdictions where trained notaries are allowed (such as Louisiana and Puerto Rico), the practice of these legal practitioners is limited to legal advice on purely non-contentious matters that fall within the purview of a notary's reserved areas of practice.

Notable notaries

Upon the death of President Warren G. Harding in 1923, Calvin Coolidge was sworn in as president by his father, John Calvin Coolidge, Sr., a Vermont notary public. As there was some controversy as to whether a state notary public had the authority to administer the presidential oath of office, Coolidge took the oath, again, upon returning to Washington.