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Anotaryis a person authorised to perform acts in legal affairs, in particular witnessing signatures on documents. The form that the notarial profession takes varies with local legal systems.[1]
A notary, while a legal professional, is distinct from anadvocatein that they do not represent the person who engages their services, or act in contentious matters.
TheWorshipful Company of Scrivenersuse an old English term for a notary, and are an association of notaries practising incentral Londonsince 1373.
Overview
editDocuments are notarized to deterfraudand to ensure they are properly executed. An impartial witness (the notary) identifies signers to screen out impostors and to make sure they have entered into agreements knowingly and willingly.Loandocuments includingdeeds,affidavits,contracts,andpowers of attorneyare very common documents needing notarization.
Code of Hammurabi Law 122(c. 1755–1750 BCE) stipulated that adepositorofgold,silver,or otherchattel/movable propertyforsafekeepingmust present all articles and a signedcontractofbailmentto a notary before depositing the articles with abanker,and Law 123 stipulated that a banker was discharged of anyliabilityfrom a contract of bailment if the notary denied the existence of the contract. Law 124 stipulated that a depositor with anotarized contract of bailmentwas entitled toredeem the entire value of their deposit.[2][3][4]
To "notarize" a document or event is not aterm of art,and its definition varies from place to place; but it generally means the performance by a notary of a series of possible steps, which may include the following (not an exhaustive list):
- Identifyingthe person appearing before the notary through personal acquaintance or by reference to significant proofs of identity includingpassport,driving license,etc.[5]
- Whereland titlesare involved or significant rights may accrue by reference to the identity,signaturesmay also be verified, recorded and compared.
- Recording the proof of identity in the notarial register or protocol.
- Satisfying the notary that the person appearing is of full age and capacity to do whatever is intended.
- Taking anaffidavitor declaration and recording that fact.
- Taking detailed instructions for a protest of abill of exchangeor a ship's protest and preparing it.
- Recording the signature of the person in the register or protocol.
- Taking an acknowledgment (in the United States) of execution of a document and preparing a certificate of acknowledgement.
- Preparing a notarial certificate (in most other jurisdictions) as to the execution or other step.
- Sealingor stamping and signing the document.
- Recording all steps in the register or protocol.
- Delivering the completed original to the person appearing.
- In some cases, retaining a copy of the document in the register or protocol.
- Charging the person appearing a fee for the service.
Common law vs. civil law notaries
editMostcommon lawsystems have what is called in the United States anotary public,a public official who notarizes legal documents and who can also administer and take oaths and affirmations, among other tasks.[6]Although notaries public are public officials, they are not paid by the government; they may obtain income by charging fees, provide free services in connection with other employment (for example, bank employees), or provide free services for the public good. In the United States (exceptPuerto Rico), any person – lawyer or otherwise – may be commissioned as a notary.
Mostcivil law-based systems (includingPuerto RicoandQuebec) have thecivil law notary,a legal professional performing many more functions than a common-law notary public. They are qualified lawyers who provide many of the same services as common-law attorneys/solicitors (negotiation and drafting of contracts, legal advice, settlement of estates, creation of a company and its status, writing of wills and power of attorney, interpretation of the law, mediation, etc.) except any involvement in disputes to be presented before a court.[7]
In the United States, asigning agent,also known as a loan signing agent, is a notary public who specializes in notarizing mortgage and real estate documents.
Notaries in civil law jurisdictions are specialized in all matters relating to real estate, completing title exams in order to confirm the ownership of the property, the existence of any encumbrances such as easements or mortgages andhypothecs.
Often, in the case of lawyer notaries, the certificate to be provided will not require the person appearing to sign. Examples arecertificates authenticating copiesand certificates as to law, such as certificates as to the capacity of a company to perform certain acts, or explaining probate law in the place.
Online systems
editIn the United States, many states includingVirginia,Texas,Ohio,andNevadahave passed laws allowing for online witness by notaries, usingscreen sharingorwebcamsas well asidentity verificationprocesses.[8]To comply with state law, notaries must be located in any of the states that have authorized remote notarization services. Virginia was the first state to pass legislation allowing online notarization in 2012. Texas and Nevada passed similar laws in 2017 that went into effect in July 2018. In the United States as of 2017 there are estimated to be over 4 million notaries.[9]
See also
editReferences
edit- ^"What is a Notary Public?".National Notary Association.Retrieved9 May2013.
- ^Hammurabi(1903)."Code of Hammurabi, King of Babylon".Records of the Past.2(3). Translated by Sommer, Otto.Washington, DC:Records of the Past Exploration Society:77.Retrieved20 June2021.
122. If anyone entrusts to... article in undiminished quantity.
- ^Hammurabi(1904)."Code of Hammurabi, King of Babylon"(PDF).Liberty Fund.Translated by Harper, Robert Francis (2nd ed.).Chicago:University of Chicago Press.p.43.Retrieved20 June2021.
§122. If a man give... disputed and repay it.
- ^Hammurabi(1910)."Code of Hammurabi, King of Babylon".Avalon Project.Translated by King, Leonard William.New Haven, CT:Yale Law School.Retrieved20 June2021.
- ^"Basic Notarial Duties".American Society of Notaries.Retrieved16 July2019.
- ^Piombino, Alfred E. (2011).Notary Public Handbook: Principles, Practices & Cases, National Edition(First ed.). East Coast Publishing.ISBN978-0-9445606-9-3.
- ^Malavet, Pedro A. (1998)."The Foreign Notarial Legal Services Monopoly: Why Should We Care?".John Marshall Law Review.31(3).SSRN1496460.Retrieved13 June2022.
- ^"State Laws Authorizing Remote e-Notarization".American Land Title Association.Retrieved21 October2020.
- ^"Notaries Are Starting To Put Down The Stamp And Pick Up A Webcam".NPR.org.Retrieved12 June2017.
