Difference between revisions of "Notary public" - New World Encyclopedia

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[[Image:NYS-Notary-Seal.jpg|thumb|An [[Emboss]]ed Notary Seal. This type of seal is no longer legally sufficient in New York State (see below).]]
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[[Image:NYS-Notary-Seal.jpg|thumb|An embossed notary seal. This type of seal is no longer legally sufficient in New York State.]]
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A '''notary public''' or '''notary''' is a public official who authenticates documents. The office dates back to [[Ancient Rome|Roman]] times. The powers and qualifications of the position vary by [[jurisdiction]], the powers of [[United States]] notaries generally being more limited than those in other countries, where notaries are usually licensed [[attorney|attorneys]]. Significantly, notaries—unlike attorneys—have a duty to the transaction as a whole not to one party or the other, ensuring that it is carried out in honesty and truthfulness.
  
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A '''notary public''' is an [[officer]] who can administer [[oath]]s and [[statutory]] [[declaration]]s, [[witness]] and [[authenticate]] documents and perform certain other acts varying from jurisdiction to jurisdiction. Generally speaking, a notary public in the United States of America has powers that are far more limited than the role of a [[Civil law notary|civil law notary]] in the rest of the world, with the exception of Louisiana. 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.
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==Definition==
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A '''notary public''' is an officer who can administer oaths and [[statute|statutory]] declarations, witness and authenticate documents, and perform certain other acts varying from [[jurisdiction]] to jurisdiction. Generally speaking, a notary public in the United States has powers that are far more limited than the role of a [[civil law]] notary in the rest of the world, with the exception of Louisiana. 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.
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In some countries and states, notaries are required to undergo specific training in the performance of their duties.  Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. Even licensed lawyers must go through additional training and apprenticeship, in some countries, before being allowed to practice the profession of a notary.  Unlike most countries, the majority of those commissioned as a notary public in the United States of America are not licensed attorneys-at-law admitted to the bar. (Although some countries consider the profession of a civil law notary, itself, to be the practice of law. Many even have institutes of higher education issuing degrees in the field.  In the United Kingdom, for example, a notary public can perform any task a solicitor or other lawyer can perform, in addition to their notary public duties, with the sole exception of representing others before the courts, unless they are also licensed as a barrister.)
 
  
 
==History==
 
==History==
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Notaries public hold an office which can trace its origins back to [[ancient Rome]]. They are the oldest continuing branch of the [[law|legal]] profession and exist throughout the whole of the world.
  
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Notaries Public (also called "notaries" or "public notaries") hold an office which can trace its origins back to [[ancient Rome]], when they were called ''scribae , tabellius'' or ''notarius.'' They are easily the oldest continuing branch of the [[legal]] profession, existing throughout the whole of the world.
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The history of notaries public has its origins in the civil institutions of ancient Rome and served as a learned profession of prominence in private and public affairs. Notaries employed within the Roman Republic also coined a type of shorthand within the empire which substituted for words of common use in formal and informal transcriptions. Writers who adopted this method were termed ''notarius'' and were responsible for the recording of shorthand statements and later transcriptions of such materials into formal memoranda.  
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The history of Notaries is set out in detail in Chapter 1 of ''Brooke's Notary'' (12th edition):
 
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: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 copiers and transcribers to a learned profession prominent in private and public affairs. Some were permanent officials attached to the [[Roman Senate|Senate]] and [[court]]s 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.
 
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:In the last century of the [[Republic of Rome|Republic]], probably in the time of [[Cicero]], 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 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.
 
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:Notwithstanding the [[Decline of the Roman Empire|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 [[Italy in the Middle Ages|mediæval Italy]] from the 12th century onwards, the notary was established as a central institution of that law, a position which still obtains in countries whose legal systems are derived from the civil law.
 
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:The separate development of the [[common law]] in [[England]], free from most of the influences of Roman law, meant that notaries were not introduced into England until later in the 13th and 14th centuries. At first, notaries in England were appointed by the [[Papal Legate]]. In 1279 the [[Archbishop of Canterbury]] was authorised by the [[Pope]] to appoint notaries. Not surprisingly, in those early days, many of the notaries were members of the [[clergy]]. In the course of time, members of the clergy ceased to take part in [[secular]] business and laymen, especially in towns and trading centres, began to assume the official character and functions of a modern notary.
 
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:The [[Reformation]] produced no material change in the position and functions of notaries in England. However, in 1533 the enactment of "the Act Concerning Peter's Pence and Dispensations" ([[The Ecclesiastical Licences Act]], 1533) terminated the power of the Pope to appoint notaries and vested that power in the King who then devolved it to the [[Archbishop of Canterbury]] who in turn devolved it to the [[Master of the Faculties]].
 
  
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:Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.
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The position of notary public remained a figure of importance throughout many parts of continental [[Europe]] and was maintained throughout the [[Dark Ages]] and Italian [[Renaissance]] as a central institution of law. This position remains to date within many countries that derive their legal systems from bodies of [[civil law]].  
  
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==Common law jurisdictions==
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Notaries were not introduced to the [[United Kingdom]] until the late thirteenth and fourteenth centuries as the legal system within Great Britain was derived from [[common law]]. When first introduced, English notaries were appointed by the Papal Legate and were often members of the [[clergy]]. In time, clergymen would refrain from participation within secular businesses and the position of notary public was often assumed by laymen. In 1533, the Papal Legate was abolished and the king was given the authority to appoint notary positions.
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The duties and functions of notaries public are described in ''Brooke's Notary'' on page 19 in these terms:
 
  
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: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 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.]
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Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.
  
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A notary, in almost all common law jurisdictions, is a qualified, experienced practitioner trained in the drafting and execution of legal documents. (A notable exception being 48 of the 50 U.S. States and some parts of Canada.) Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. Specifically, the functions of notaries 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, [[witness]]ing [[affidavit]]s and statutory declarations, certification of copy documents, noting and protesting of [[bill of exchange|bills of exchange]] and the preparation of [[ship]]s' protests.
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==Qualifications==
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In some countries and states, notaries are required to undergo specific training in the performance of their duties. Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. Even licensed [[lawyer]]s must go through additional training and apprenticeship, in some countries, before being allowed to practice the profession of a notary. Unlike most countries, the majority of those commissioned as a notary public in the United States of America are not licensed attorneys-at-law admitted to the [[bar association|bar]]. Some countries consider the profession of a civil law notary, itself, to be the practice of law. Many even have institutes of higher education issuing [[degree]]s in the field. In the United Kingdom, for example, a notary public can perform any task a solicitor or other lawyer can perform, in addition to their notary public duties, with the sole exception of representing others before the [[court]]s, unless they are also licensed as a barrister.
  
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Significant weight attaches to documents certified by notaries. Documents certified by notaries are sealed with the notary's [[Seal (device)|seal]] or stamp and are recorded by the notary in a register (also called a "protocol") maintained and permanently kept by him or her. These are known as "notarial acts".  In countries subscribing to the Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents only one further act of certification is required, known as an [[apostille]]) and is issued by a government department (usually the Foreign Affairs Department or similar). For other countries an "authentication" or "legalization" must be issued by the Foreign Affairs Ministry of the country from which the document is being sent or the Embassy, Consulate-General or High Commission of the country to which it is being sent.  
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==Notarization Procedures==
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Notarization requires that the notary first screen the signer. This involves reviewing identity cards (such as a driver's license) or testimony from one or more credible identifying witnesses; the signer is responsible for bringing the necessary identification or witnesses. Once the screening is finished, the notary must complete the notarial act and record the action in a journal. California anti-[[fraud]] law requires a thumbprint in the journal entry for certain types of transactions. Documents with blank spaces cannot be notarized, a further anti-fraud measure.  
  
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===[http://www.thenotariessociety.org.uk England]===
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===Primary Notarizations===
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Two types of primary notarizations are "acknowledgements" and "jurats."
  
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After the passage of the 1533 Act, 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.
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An '''acknowledgement''' is an attestation by a notary that a person proved to the notary's satisfaction their [[identity]] and signed the document in question within the notary's presence. States vary in the specific requirements for identification and whether it is necessary that the person need actually sign the document in the presence of the notary. Acknowledgments can be executed on deeds, documents affecting [[property]], and the like. The signed statement by the notary proves that the signer personally appeared before the notary, is personally known or was positively identified by the notary, and acknowledged having signed the document.  
  
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In [[England]] there are several classes of notaries. Nearly all of them are Solicitors who additionally work as notaries. There are also Scrivener notaries, who get their name from the [[Worshipful Company of Scriveners|Scriveners' Company]], were the only notaries permitted to practice in the City of London but they lost this monopoly in 1999.  
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A '''jurat''' is the official written statement by a notary public that he or she has administered and witnessed an affirmation on an affidavit, and that the person has sworn to or affirmed the truth of information contained in a document under penalty of [[perjury]]. A jurat certifies that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary (3) signed the document in the presence of the notary, and (4) took an oath or affirmation administered by the notary. The oath or affirmation is designed to compel truthfulness in a signer, through fear of the [[law]] or of [[God]].
  
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The other notaries in England are either ecclesiastical notaries whose functions are limited to the affairs of the Church of England  and non-legally qualified persons who perfectly satisfy the [[Master of the Faculties]] of the [[Archbishop of Canterbury]] that they possess an adequate understanding of the law. Both the latter two categories are required to pass examinations set by the Master of Faculties. The regulation of notaries was modernized in the 1990s as a result of the [[Courts and Legal Services Act 1990]], section 57.
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==Notary Publics and Lawyers==
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There are three significant differences between notaries and other lawyers.
  
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===Australia===
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Firstly, the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties within a transaction as long as there is no conflict between the parties. In such cases it is the duty of the notary to ensure that the transaction they conclude is fair to both sides.
  
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In all Australian States and Territories (except Queensland) notaries public are appointed by the [[Australian court hierarchy#State and territory courts|Supreme Court of the relevant State or Territory]]. A very few have been appointed as a notary for more than one State or Territory.
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Secondly, a notary identifies himself or herself on documents by the use of his or her individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the genuineness of a document.  
  
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Queensland, like [[New Zealand]], persists with the archaic practice of appointment by the Archbishop of Canterbury acting through the [[Master of the Faculties]].
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Thirdly, a notary will often need to place and complete a special clause or attach a special certificate, known as an "eschatocol," on or to a document in order to make it valid for use overseas. The exact wording of the eschatocol is not fixed and will vary depending on the nature of the notarial act.
  
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Virtually all Australian notaries are lawyers of several years standing at least but very few lawyers are also notaries. 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 (Australia)|Victoria]], in 2002 there were only 66 notaries for a city with a population of 3.5 million and only about 90 for the whole of that State. Compare this with the United States where it has been estimated that there are over 3 million notaries for a nation with a population of 296 million.
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Below is an example of an eschatocol used in the verification of a signature by a South [[Australia]]n notary:
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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 [[September 12]], [[2003]], in refusing the application:
 
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: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.
 
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Historically there have been some very rare examples of patent attorneys or accountants being appointed, but that now seems to have ceased.
 
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However, there are three significant differences between notaries and other lawyers.
 
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Firstly, the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it his or her duty is to ensure that the transaction that they conclude is fair to both sides.
 
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Secondly, a notary will often need to place and complete a special clause or attach a special page (known as an "eschatocol") on or to a document in order to make it valid for use overseas. The exact wording of the eschatocol is not fixed and will vary depending on the nature of the notarial act, but the text below is an example of what may be used in the verification of a signature by a South Australian notary.
 
  
 
<table align="center" width="60%">
 
<table align="center" width="60%">
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<tr><td>TO ALL TO WHOM these presents shall come I, (FULL NAME OF NOTARY), Notary Public, duly authorised and practising at (city) in the State of South Australia of the Commonwealth of Australia and who remains a Notary Public for so long as my name appears upon the Roll of Public Notaries kept by the Registrar of the [[Supreme Court of South Australia]] pursuant to Section 92 of the Legal Practitioners Act 1981 (SA) SEND GREETINGS and DO HEREBY ATTEST AND CERTIFY that the document or documents hereunto annexed was or were freely and voluntarily signed and executed in my presence this day by the person or persons named therein who is or are personally known to me or who was or were identified to me to my satisfaction and who personally appeared before me and who appeared to understand the meaning and effect of the said document or documents.
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<tr><td>'''TO ALL TO WHOM''' these presents shall come I, '''(FULL NAME OF NOTARY)''', Notary Public, duly authorised and practising at '''(city)''' in the State of South Australia of the Commonwealth of Australia and who remains a Notary Public for so long as my name appears upon the Roll of Public Notaries kept by the Registrar of the Supreme Court of South Australia pursuant to Section 92 of the Legal Practitioners Act 1981 (SA) '''SEND GREETINGS''' and '''DO HEREBY ATTEST AND CERTIFY''' that the document or documents hereunto annexed was or were freely and voluntarily signed and executed in my presence this day by the person or persons named therein who is or are personally known to me or who was or were identified to me to my satisfaction and who personally appeared before me and who appeared to understand the meaning and effect of the said document or documents.
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IN FAITH AND TESTIMONY whereof I the said Notary have hereunto subscribed my name and affixed my seal at
 
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(city) aforesaid this (day) of (month) (year).
 
  
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(Signature)                 (Seal)<br /><br />
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'''IN FAITH AND TESTIMONY''' whereof I the said Notary have hereunto subscribed my name and affixed my seal at
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'''(city)''' aforesaid this '''(day)''' of '''(month) (year)'''.
  
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(Full Name of Notary)<br /><br />
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'''(Signature)  (Seal)'''
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'''(Full Name of Notary)<br /><br />
  
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''Notary Public''<br />
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'''''Notary Public''<br />
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''City of (city)''<br />
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'''''City of (city)''<br />
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''State of South Australia<br />
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'''''State of South Australia<br />
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''Commonwealth of Australia''<br />
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'''''Commonwealth of Australia''<br />
 
</td></tr></table>
 
</td></tr></table>
  
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The words "''IN FAITH''" denote the historic religious connections of the office of a notary public in the Middle Ages. Thus while those words will be used in an eschatocol relating to a sworn affidavit they will be omitted in one relating to an affirmed affidavit or a statutory declaration.
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==Common Law Jurisdictions==
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A notary, in almost all [[common law]] [[jurisdiction]]s, is a qualified, experienced practitioner trained in the drafting and execution of legal documents. Notaries often record matters of judicial importance as well as private transactions or events where an authenticated record or document is required. The functions of notaries include the preparation of certain types of documents including international [[contract]]s, deeds, [[will and testament|will]]s and powers of attorney, and the certification of due execution, the administering of oaths, witnessing affidavits, statutory declarations, and more.  
  
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In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an "authentication" or an "[[apostille]]" (depending on the relevant foreign country) from the [[Department of Foreign Affairs and Trade (Australia)|Department of Foreign Affairs and Trade]].  
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Significant weight is attached to documents that are certified by notaries. These documents are sealed with the notary's seal or stamp and are recorded by the notary in a register maintained and permanently kept by the notary. These are known as "notarial acts." In countries subscribing to the Hague Convention, which abolished the requirement for legalization of foreign public documents, only one further act of certification is required termed an "apostille," a certification issued by a government department. For other countries an "authentication" or "legalization" must be issued by the foreign affairs ministry of the country from which the document is being sent or the embassy, consulate-general or High Commission of the country to which it is being sent.  
  
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Thirdly, a notary identifies himself or herself on documents by the use of his or her individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the genuineness of a document.  
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===England===
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In [[England]] there are several classes of notaries. Nearly all of them are [[solicitor]]s who additionally work as notaries. A second class includes scrivener notaries, who get their name from the Scriveners' Company, and were the only notaries permitted to practice in the City of [[London]] until 1999.  
  
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Their principal duties include:
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Other notaries in England include ecclesiastical notaries, whose functions are limited to the affairs of the [[Church of England]], and non-legally qualified persons who satisfy the master of the faculties of the [[Archbishop of Canterbury]] that they possess an adequate understanding of the law. Members of this class are required to pass examinations set by the master of faculties. The regulation of notaries was modernized in the 1990s as a result of England’s Courts and Legal Services Act 1990, section 57.
  
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# attestation of documents and certification of their due execution for use Australia and internationally,  
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Within the [[United Kingdom]], a notary public can perform any task a solicitor or other lawyer can perform, in addition to their notary public duties, with the sole exception of representing others before the courts, unless they are also licensed as a barrister.
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# preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally,  
 
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# administering of oaths for use in Australia and internationally,
 
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# witnessing affidavits, statutory declarations and other documents for use in Australia and internationally,  
 
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# certification of copy documents for use Australia and internationally,  
 
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# exemplification of official documents for use internationally,
 
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# noting and protesting of bills of exchange, and,
 
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# preparation of ships' protests.
 
  
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Although it was once usual for Australian notaries to use a red embossed seal it is now increasing common, for practical reasons, for them to use a red inked stamp. Such seals or stamps must include the notary's full name and the words "notary public". It is also common for the seal or stamp to include the notary's chosen logo or symbol.
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===Australia===
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In most [[Australia]]n states and territories, the exception being Queensland, notary publics are appointed by the Australian Supreme Court of the relevant state or territory. Few notaries have been appointed as such for more than one state or territory.
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In South Australia at least (as also in [[Scotland]]) it is acceptable for a notary to use the letters "NP" after their name. Thus a South Australian notary may have "John Smith LLB NP" or similar on his business card or letterhead.
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Queensland, like [[New Zealand]], persists with the original practice of appointment by the Archbishop of Canterbury acting through the master of the faculties.
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It is important for US readers to note that, unlike US notaries, Australian notaries and those of virtually all other countries do not hold "commissions" which can expire. Once appointed they are authorised to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct.
 
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All Australian jurisdictions also have [[Justice of the Peace|Justices of the Peace]] (JP) or Commissioners for Affidavits who can witness affidavits or statutory declarations and certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia rather than in a foreign country, with the possible exception of a few Commonwealth countries not including the [[United Kingdom]] or New Zealand except for very limited purposes.
 
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Almost all Australian lawyers are also Commissioners for Affidavits.
 
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Justices of the Peace (JPs) are (usually) laypersons who have  minimal, if any, training (depending on the jurisdiction) but are of proven good character.
 
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In a few jurisdictions, if they have had special training, JPs may also be very minor quasi-judicial officers, able to issue certain warrants and deal with very minor court processes such as after hours bail. They are not permitted to charge for their services and there are at least tens of thousands Australia-wide. They are entitled to use the letters "JP" after their name.  
 
  
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Therefore a US notary resembles an Australian JP rather than an Australian notary.
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Australian notaries, unlike those of the United States, do not hold "commissions" that can expire. Once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. Virtually all Australian notaries are [[lawyer]]s of several years standing, though very few lawyers are also notaries.
  
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===New Zealand===
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All Australian jurisdictions also have [[justice of the peace|justices of the peace]] or commissioners for affidavits who can witness statutory declarations and certify documents if the document is to be used only in Australia. Almost all Australian lawyers are also commissioners for affidavits. Justices of the peace are often laypersons who have minimal training but are of proven good character.  
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Unless excluded under dominion or colonial law, the [[Master of the Faculties]] formerly had authority to appoint notaries public in a [[dominion]] or colony. The admission of notaries in the [[Commonwealth of Nations|Commonwealth]] was governed specifically by the Public Notaries Act 1833 (UK). The provisions of the Public Notaries Act 1801-43 requiring a notary to be a [[solicitor]] did not apply overseas, nor need a notary have a practising certificate as a solicitor, or from the [[Court of Faculties]].
 
  
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The usual procedure followed is that the applicant lodges with the Court of Faculties a [[memorial]] counter-signed by local merchants, shipping companies, bankers and other persons of substance, which show the local need of a notary and the fitness of the applicant. They also lodge their certificate of admission as a solicitor. A fee accompanies the application. The applicant, with the support of two other notaries public, who vouch that the applicant is well skilled in the affairs of notarial concern, petitions the Master of the Faculties.
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In few Australian jurisdictions, justices of the peace may also be minor judicial officers, responsible for issuing certain [[warrant]]s and handling minor [[court]] processes such as after hours [[bail]]. Justices of the peace are not permitted to charge for their services. In the United States, the responsibilities and qualifications of notaries public resemble much more of an Australian justice of the peace, rather than an Australian notary.
  
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The chief consideration for the approval of an application is whether there is sufficient need in the district, regarding the convenience of bankers, ship-owners and merchants. The local society of notaries must be satisfied that a need exists for an additional notary in the area served by the applicant. Priority is given, as a matter of practice, to an applicant within the same firm, as a replacement in the case of the death of a notary, or where a practising notary is reducing his or her workload because of age or infirmity.
 
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The Master of the Faculties continues to appoint notaries overseas in the exercise of the general authorities granted by s 3 of the [[Ecclesiastical Licences Act 1533]] (Eng). In these cases he is guided by local considerations of public convenience.
 
 
===United States===
 
===United States===
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In the United States, generally speaking, a '''notary public''' is a person appointed by a state [[government]] (often the governor or the secretary of state of the state, or in some cases the state legislature) to serve the public as an impartial [[witness]]. Since the notary is a state officer, whether the jurisdiction is common law or civil law is determined on a state-by-state basis; [[Louisiana]] is the only civil law state.<ref>
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Unlike most countries, the majority of those commissioned as a notary public in the United States are not licensed attorneys-at-law admitted to the bar. Generally speaking, a U.S. notary public is a person appointed by a state government to serve the public as an impartial witness. Since the notary is a state officer, whether the jurisdiction is [[common law]] or [[civil law]] is determined on a state-by-state basis; Louisiana is the only civil law state within the United States.  
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''Paul M. Herbert LSU Law Center''. (2006). Louisiana State University. Retrieved 2006-08-09 from [http://www.law.lsu.edu http://www.law.lsu.edu]
 
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</ref> In most states, only qualified persons can apply for such an appointment, called a commission. Qualifications vary from state to state, but states often bar people with certain types of criminal convictions and/or below a certain age from being appointed, and applicants usually must pass some type of relatively simple examination covering notary practices and law. The material for such exams is usually easily contained in a booklet. Some states also require a bond or insurance.
 
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Notaries in the United States are much less closely regulated than notaries in civil law jurisdictions or in most other [[common law]] countries, typically because U.S. notaries have less authority. In the United States, a non-attorney notary may not offer [[law|legal]] advice or prepare documents (with the exception of Louisiana) and cannot recommend how a person should sign a document or even what type of notarization is necessary. In many cases, a notary cannot authenticate a copy of a document.
 
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The most common notarial acts in the United States are the taking of '''acknowledgements''' and '''oaths'''.
 
−
 
 
−
* An '''acknowledgement''' is an attestation by a notary that a person proved to the notary's satisfaction their identity then either signed the document in question in the notary's presence or acknowledged that a signature on the document was their own, and that they signed intending to "execute," or put into legal effect, the document. States vary in the specific requirements for indentification and whether the person need actually sign the document in front of the notary. The typical form for an acknowledgement is:
 
−
<blockquote>
 
−
    On the ....day of .... in the year...before me, the undersigned, personally appeared ...personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
 
−
</blockquote>
 
−
 
 
−
* A '''jurat''' is the official written statement by a notary public that he or she has administered and witnessed an '''oath''' or '''affirmation''' on an '''affidavit''' - that, is that a person has sworn to or affirmed the truth of information contained in a document, under penalty of perjury, whether that document is a lengthy deposition or a simple statement on an application form. The simplest form of jurat and the oath or affirmation administered by a notary are:
 
−
<blockquote>
 
−
*'''Jurat''': "Sworn to before me this ........ day of ........, 20 ......"
 
−
 
 
−
*'''Oath:''' "Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?"
 
−
 
 
−
*'''Affirmation''' (for those opposed to swearing oaths): "Do you solemnly, sincerely, and truly, declare and affirm that the statements made by you are true and correct?"
 
−
</blockquote>
 
−
 
 
−
In most cases, all of the acts of a notary must include a venue, or official listing of the place where they happened, usually in the form of the state and county, with the abbreviation "ss" for the Latin ''scilicet'', "more particularly," often in this form:
 
−
<pre>
 
−
State of .......)
 
−
                )ss:
 
−
County of.......)
 
−
</pre>
 
−
 
 
−
The National Notary Association estimates the United States has 4.5 million notaries public.
 
−
<ref>
 
−
{{cite web|
 
−
url=http://www.nationalnotary.org/about/index.cfm?text=aboutHistory|
 
−
authorlink=National Notary Association|
 
−
title=History of the NNA|
 
−
accessdate=2006-07-09}}
 
−
</ref>
 
−
 
 
−
==== Controversies ====
 
−
A Maryland requirement that to obtain a commission, a notary declare his belief in God, as required by the Maryland Constitution, was found by the [[Supreme Court of the United States|United States Supreme Court]] in ''[[Torcaso v. Watkins]]'', {{ussc|367|488|[[1961]]}} to be unconstitutional.  Historically, some states required that a notary be a [[citizen]] of the United States. However, the U.S. Supreme Court, in the case of ''[[Bernal v. Fainter]]'' {{ussc|467|216|[[1984]]}} (the ''Fainter'' case), declared that to be impermissible.
 
−
 
 
−
In the U.S., there are reports of notaries (or people claiming to be notaries) having taken advantage of the differing roles of notaries in common law and civil law jurisdictions to engage in the unauthorized practice of law.  The victims of such scams are typically illegal immigrants from civil law countries who need assistance with, for example, their immigration papers and want to avoid hiring an attorney.  Confusion often results from the mistaken premise that a notary public in the United States serves the same function as a ''Notario Público'' in [[Spanish language|Spanish]]-speaking countries (which are [[Civil law (legal system)|civil law]] countries, ''see below'').  Prosecutions in such cases are difficult, as the victims are often deported and thus unavailable to testify.
 
−
 
 
−
====California====
 
−
Each state authorizes a notary to perform a limited range of activities called notarizations.  See California Government Code Sections 8201 ''et seq''.
 
−
 
 
−
Effective [[July 1]] [[2005]], California notaries must take a [http://www.ss.ca.gov/business/notary/notary_cklist_complete_mandatory_education.htm 6 hour class] before taking the notary exam.  This applies to both new notaries and existing notaries renewing their commissions.
 
−
 
 
−
Due to the concerns mentioned above, California explicitly prohibits notaries from using the literal Spanish translation of their title [http://www.ss.ca.gov/business/notary/notary_guidelines_2001.pdf] ([[PDF]] file). 
 
−
 
 
−
Notarization does not prove the truthfulness of statements in a document, nor does it legalize or validate a document. Notarization also does not protect an author's rights in artistic creations or inventions.
 
−
 
 
−
Notarization requires that the notary first screen the signer. This involves reviewing identity cards (e.g., a driver's license) or testimony from one or more credible identifying witnesses; the signer is responsible for bringing the necessary identification or witnesses. Once the screening is finished, the notary must complete the notarial act and record the action in a journal. California anti-fraud law requires a thumbprint in the journal entry for certain types of transactions. Documents with blank spaces cannot be notarized (a further anti-fraud measure). 
 
−
 
 
−
The two primary types of notarizations are ''acknowledgements'' and ''jurats''.
 
−
 
 
−
''[[Acknowledgment]]s'' are executed on [[deed]]s, documents affecting property, and the like. An acknowledgment is a signed statement by the notary that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary, and (3) acknowledged having signed the document.
 
−
 
 
−
A ''jurat'' is the certificate of the notary stating that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary (required as of [[July 1]] [[2005]] under [http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab_2051-2100/ab_2062_bill_20040915_chaptered.html Assembly Bill 2062]); (3) signed the document in the presence of the notary, and (4) took an oath or affirmation administered by the notary (e.g., "Do you swear that the statements in this document are true, so help you God?" or "Do you affirm that the statements in this document are true?").  The oath or affirmation is designed to compel [[truth]]fulness in a signer, through fear of the law or of God.
 
−
 
 
−
 
 
−
 
 
−
====New York====
 
−
<ref>http://www.dos.state.ny.us/lcns/lawbooks/notary.html</ref>
 
−
Notaries are commissioned by the Secretary of State of the State of New York, through the Division of Licensing Services, for four year terms (and are then eligible for reappointment). Applicants must be citizens of the United States and either residents of the State of New York or have a business in the state. The law requires that an applicant "be of good moral character, has the equivalent of a common school education and is familiar with the duties and responsibilities of a notary public." (Executive Law, §130) In practice, this means that the applicant must pass a brief examination on notary procedure and law (such examinations are given often - monthly or weekly - at locations around the state), and not have a criminal record that includes any felony convictions at all, draft dodging, or any misdemeanors that involve firearms, drugs, burglars tools or illegal entry, aiding a prison escape, prostitution, vagrancy or most laws involving the integrity of judicial proceedings (perjury, forgery and the like) (Executive Law §130, Public Officers Law §3). By a quirk of New York law that bars them from holding any other office, sherrifs may not be appointed notaries.(§13(a) of Article XIII of the Constitution of the State of New York.)
 
−
 
 
−
Attorneys at law admitted to practice in New York may become notaries simply by filing the application and fee, without further examination.
 
−
 
 
−
Upon receiving notice of their passing the examination, new notaries must go in person to their county clerk, take an oath of office, file a signature card, and receive from the clerk their commission and identification card. They are then said to be "qualified" in that county: though a notary may act anywhere within the state, their official records are kept within that county. Notaries residing in New York City (that is, in New York, Bronx, Queens, Kings and Richmond Counties) additionally receive a registration number. (Executive Law §131)
 
−
 
 
−
Though qualified in only one county, and though able to act in any county, notaries may at their option file "certificates of official character" in counties where they regularly do business merely for the convenience of verifying local acts. (§132)
 
−
 
 
−
County clerks can authenticate the signature of a notary on a document provided to them, and provide a certificate attesting to this.(§133) Every county clerk (who may himself witness documents) must have a notary public available in his office for free service to the public at all times. (County Law, §534)
 
−
 
 
−
New York notaries are empowered to administer oaths and affirmations (including, for instance, both oaths of office for political officials and simple, "I swear that all the information in this document is true and correct" statements on application forms), to take affidavits and depositions, to receive and certify acknowledgments or proof of deeds, mortgages and powers of attorney and other instruments in writing; to demand acceptance or payment of foreign and inland bills of exchange, promissory notes and obligations in writing, and to protest these (that is, certify them) for non-acceptance or non-payment. (Executive law, §135) Notaries have no other powers: notably (as emphasized by official publications) they may ''not'' certify copies of documents (for instance, "I hereby certify that this is a true and correct copy...," is something beyond the authority of a New York State notary). Further, notaries in New York are specifically warned not to notarize last wills and testaments: in New York, wills must be attested to by two witnesses (who need not be notaries), and a will witnessed by a notary is not thereby validated, a source of confusion for many people.
 
−
 
 
−
Notaries may not take oaths or acknowledgements by telephone, or in any other way besides personal appearance. They may not give any advice or assistance regarding the law or any legal documents, including offering an opinion on whether or not a person needs a document notarized. They may not solicit for or refer business to any lawyer with whom they have any kind of financial relationship, nor may they share fees with lawyers. They may not advertise any services as noatry beyond what the law empowers them to do.
 
−
 
 
−
Notaries in New York (aside from those on duty in a county clerk's office, as above) are permitted to charge a $2 fee for each act (except protests of promissory notes, which are 75 cents each, plus 10 cents per notice, and oaths to government officials and military officers, which are free) though in practice many notaries waive this (particularly for customers of their other services, as for instance a notary in a bank).
 
−
 
 
−
New York does not require that notaries use an official seal or stamp - the embossed seal illustrated above is, in fact, now a decorative addition to a document rather than a requirement of law, and is itself insufficient for a notarization. A notarization must contain the notary's signature, their name in print, the words "Notary Public - State of New York," the county in which they are qualified, the county in which they have filed a certificate of official character (if relevant), the statement, "My commission expires," and the appropriate date, all in black ink. New York City notaries add their registration number. For convenience, most notaries have a rubber stamp with this information, most often in simple lines of type, though some notaries prefer a circular form. Embossed stamps may be used, but these must be accompanied by a signature and the embossing itself must be highlighted with black ink to be legal (manufacturers of embossed stamps also make ink rollers to accomplish this). The notarization of documents that do not comply with these requirements is not invalidated, though it will present problems of verification and the notary may be subject to discipline by the Secretary of State. (§137)
 
−
 
 
−
There is no bond, insurance or record-keeping requirement for notaries in New York, and no specific identification requirement for those seeking notarization (notaries may set their own standards for satisfying themselves that clients are who they claim to be).
 
  
−
New York has another official similar to a notary: '''commissioner of deeds'''. Like a notary, a commissioner of deeds is a person who almost always has some other employment and who has filed an application and passed an examination, but the application is filed with and appointment is made by a local city government rather than the state. Commissioners of deeds are normally appointed ''en masse'' in periodic acts of the city council. The powers and rules and regulations are practically identical to those of a notary public except that the commissioner of deeds' authority exists only within the limits of the city for which he or she is appointed, and does not extend to the area of the whole state. Despite the name, their powers are not restricted to certifying signatures on property transfers. A large number of political party officials and activists apply for commissions as commissioners of deeds to certify signatures on nominating petitions in New York's sometimes complex elections process, as the application is cheaper and the registration process slightly less cumbersome than for a notary.<ref>http://nycmarriagebureau.com/about/commissionerofdeeds.html</ref>
+
In most states, only qualified candidates can apply for such an appointment, termed a commission. Qualifications vary from state to state, though [[statute]]s often bar people from being appointed if holding certain types of [[crime|criminal]] convictions, or are below a certain age. All applicants must pass some type of examination regarding notary practices and law to be considered as a candidate. [[Attorney]]s at law admitted to practice in New York may become notaries simply by filing the application and fee, without further examination.
  
 +
Upon receiving notice of their passing the examination, new notaries must go in person to their county clerk, take an oath of office, file a signature card, and receive from the clerk their commission and identification card. They are then said to be "qualified" in that county: though a notary may act anywhere within the state, their official records are kept within counties. Though qualified in only one county, and though able to act in any county, notaries may at their option file "certificates of official character" in counties where they regularly do business merely for the convenience of verifying local acts.
  
 +
County clerks can authenticate the signature of a notary on a document provided to them, and provide a certificate attesting to this. Every county clerk (who may himself witness documents) must have a notary public available in his office for free service to the public at all times.
  
−
==Civil Law jurisdictions==
+
Notaries in the United States are much less closely regulated than notaries in civil law jurisdictions or in most other common law countries, typically because U.S. notaries have less authority. In the United States, a non-attorney notary may not offer legal advice or prepare documents (with the exception of Louisiana) and cannot recommend what type of notarization may be necessary. In many cases, a notary cannot authenticate a copy of a document. The most common of notarial acts in the United States are the taking of acknowledgements and oaths. All acts of a notary public must include a venue, or official listing of the place where authenticated, usually in the form of the state and county. The National Notary Association estimates the United States has more than 4.5 million notaries public nationwide.
  
−
The role undertaken by notaries in [[civil law (legal system)|civil law]] countries is much greater than in [[common law]] countries. Notaries in the former countries frequently undertake work done in common law countries by the Titles Office and other Government agencies. The qualifications imposed by some countries is much greater. In [[Greece]], for example, a practitioner must choose to be either a solicitor or a notary.
+
==Civil Law Jurisdictions==
−
 
+
The role undertaken by notaries in [[civil law]] systems is much greater than in [[common law]] countries. Notaries under civil law frequently undertake work done in common law countries by titled officers and other government agencies. The qualifications of notary publics imposed by civil law countries are much greater. In [[Greece]], for example, a practitioner must choose to be either a solicitor or a notary, but cannot act as both.
−
This should be contrasted with the [[Latin America]]n ''notario'' who may be similar to an [[attorney at law]] or [[lawyer]]. A French ''[[notaire]]'', a German ''[[http://de.wikipedia.org/wiki/Notar|Notar]]'' and an Italian ''[[Notaio]]'' register [[will (law)|will]]s and other documents, and authenticates transactions of [[real estate]].
 
−
 
 
−
In the few United States jurisdictions where trained notaries are allowed (such as [[Puerto Rico]]), the practice of these jurists is limited to non-judicial legal advice, property conveyencing and legal drafting. See [[civil law notary]].
 
  
 +
Notaries of civil law receive a legal education similar to the education received by barristers of the United Kingdom. Civil law notaries participate in areas of private law and often litigate controversy between two individuals or private parties, involving minimal if any intervention by the state. The most common areas in which civil law notaries practice are property transfers, the drafting of private contracts, commercial transactions and other property right litigations. Civil law notaries are without the authority to appear before courts on behalf of individuals or private parties.
  
 
===Germany===
 
===Germany===
 +
In [[Germany]], the civil law notary plays an important role in [[contract]]ual agreements relating to special laws such as [[property law]]s, land charge certifications, laws of succession, [[family law]], and corporate law. In Germany, a notary is very important to daily [[business]]. All transactions must be signed and sealed at the office of the notary public.
  
−
In Germany, the ''Notar (pl. Notare)'' ([[civil law notary]]) plays an important role in contractual agreements relating to special laws such as
+
The ''Notar'' has legal training equivalent to the training of a [[solicitor]]. The notary is appointed by the state government and is authorized to certify deeds. He or she provides independent and impartial advice to contractual parties. Depending on the state, German notaries officiate either as a single-profession notary, his or her only profession being a civil law notary, or as both solicitor and notary.  
−
 
 
−
# property law
 
−
# land charge certification
 
−
# law of succession
 
−
# family law
 
−
# corporate law.
 
−
 
 
−
The ''Notar'' has legal training equivalent to the training of a solicitor. (S)He is appointed by the State government and is authorised to certify deeds. He provides independent and impartial advice to contractual parties. Depending on the State, German notaries officiate either as a "single-profession notary" (i.e. his/her only profession is being a civil law notary), or as a "solicitor and notary" (i.e. a solicitor who may also act as civil law notary).
 
 
   
 
   
−
The notary drafts the deeds in accordance with German law and provides legal advice regarding a contract.  
+
The notary drafts the deeds in accordance with German law and provides legal advice regarding a contract. He will read aloud the deed in front of all parties involved. The deed is signed by all parties, sealed by the notary and is irrevocable.
−
He will read aloud the deed in front of all parties involved. The deed is signed by all parties and sealed by the notary. It is irrevocable.
 
−
 
 
−
In Germany, a notary is very important to daily business. All property transactions must be signed and sealed at the office of the notary public (§ 311 b of the German Civil Code).
 
−
 
 
  
 
==References==
 
==References==
−
<references/>
+
*''The American Heritage Dictionary of the English Language'', Fourth Edition. 2004, 2000 by Houghton Mifflin Company.
−
 
+
*''Dictionary of Real Estate Terms''. 2004. Barron's Educational Series, Inc.
−
 
+
*''West's Encyclopedia of American Law''. 1998. The Gale Group, Inc.
  
 
{{Credit1|Notary_public|72426351|}}
 
{{Credit1|Notary_public|72426351|}}

Latest revision as of 23:37, 3 April 2008


An embossed notary seal. This type of seal is no longer legally sufficient in New York State.

A notary public or notary is a public official who authenticates documents. The office dates back to Roman times. The powers and qualifications of the position vary by jurisdiction, the powers of United States notaries generally being more limited than those in other countries, where notaries are usually licensed attorneys. Significantly, notaries—unlike attorneys—have a duty to the transaction as a whole not to one party or the other, ensuring that it is carried out in honesty and truthfulness.

Definition

A notary public is an officer who can administer oaths and statutory declarations, witness and authenticate documents, and perform certain other acts varying from jurisdiction to jurisdiction. Generally speaking, a notary public in the United States has powers that are far more limited than the role of a civil law notary in the rest of the world, with the exception of Louisiana. 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.

History

Notaries public hold an office which can trace its origins back to ancient Rome. They are the oldest continuing branch of the legal profession and exist throughout the whole of the world.

The history of notaries public has its origins in the civil institutions of ancient Rome and served as a learned profession of prominence in private and public affairs. Notaries employed within the Roman Republic also coined a type of shorthand within the empire which substituted for words of common use in formal and informal transcriptions. Writers who adopted this method were termed notarius and were responsible for the recording of shorthand statements and later transcriptions of such materials into formal memoranda.

The position of notary public remained a figure of importance throughout many parts of continental Europe and was maintained throughout the Dark Ages and Italian Renaissance as a central institution of law. This position remains to date within many countries that derive their legal systems from bodies of civil law.

Notaries were not introduced to the United Kingdom until the late thirteenth and fourteenth centuries as the legal system within Great Britain was derived from common law. When first introduced, English notaries were appointed by the Papal Legate and were often members of the clergy. In time, clergymen would refrain from participation within secular businesses and the position of notary public was often assumed by laymen. In 1533, the Papal Legate was abolished and the king was given the authority to appoint notary positions.

Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.

Qualifications

In some countries and states, notaries are required to undergo specific training in the performance of their duties. Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. Even licensed lawyers must go through additional training and apprenticeship, in some countries, before being allowed to practice the profession of a notary. Unlike most countries, the majority of those commissioned as a notary public in the United States of America are not licensed attorneys-at-law admitted to the bar. Some countries consider the profession of a civil law notary, itself, to be the practice of law. Many even have institutes of higher education issuing degrees in the field. In the United Kingdom, for example, a notary public can perform any task a solicitor or other lawyer can perform, in addition to their notary public duties, with the sole exception of representing others before the courts, unless they are also licensed as a barrister.

Notarization Procedures

Notarization requires that the notary first screen the signer. This involves reviewing identity cards (such as a driver's license) or testimony from one or more credible identifying witnesses; the signer is responsible for bringing the necessary identification or witnesses. Once the screening is finished, the notary must complete the notarial act and record the action in a journal. California anti-fraud law requires a thumbprint in the journal entry for certain types of transactions. Documents with blank spaces cannot be notarized, a further anti-fraud measure.

Primary Notarizations

Two types of primary notarizations are "acknowledgements" and "jurats."

An acknowledgement is an attestation by a notary that a person proved to the notary's satisfaction their identity and signed the document in question within the notary's presence. States vary in the specific requirements for identification and whether it is necessary that the person need actually sign the document in the presence of the notary. Acknowledgments can be executed on deeds, documents affecting property, and the like. The signed statement by the notary proves that the signer personally appeared before the notary, is personally known or was positively identified by the notary, and acknowledged having signed the document.

A jurat is the official written statement by a notary public that he or she has administered and witnessed an affirmation on an affidavit, and that the person has sworn to or affirmed the truth of information contained in a document under penalty of perjury. A jurat certifies that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary (3) signed the document in the presence of the notary, and (4) took an oath or affirmation administered by the notary. The oath or affirmation is designed to compel truthfulness in a signer, through fear of the law or of God.

Notary Publics and Lawyers

There are three significant differences between notaries and other lawyers.

Firstly, the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties within a transaction as long as there is no conflict between the parties. In such cases it is the duty of the notary to ensure that the transaction they conclude is fair to both sides.

Secondly, a notary identifies himself or herself on documents by the use of his or her individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the genuineness of a document.

Thirdly, a notary will often need to place and complete a special clause or attach a special certificate, known as an "eschatocol," on or to a document in order to make it valid for use overseas. The exact wording of the eschatocol is not fixed and will vary depending on the nature of the notarial act.

Below is an example of an eschatocol used in the verification of a signature by a South Australian notary:

TO ALL TO WHOM these presents shall come I, (FULL NAME OF NOTARY), Notary Public, duly authorised and practising at (city) in the State of South Australia of the Commonwealth of Australia and who remains a Notary Public for so long as my name appears upon the Roll of Public Notaries kept by the Registrar of the Supreme Court of South Australia pursuant to Section 92 of the Legal Practitioners Act 1981 (SA) SEND GREETINGS and DO HEREBY ATTEST AND CERTIFY that the document or documents hereunto annexed was or were freely and voluntarily signed and executed in my presence this day by the person or persons named therein who is or are personally known to me or who was or were identified to me to my satisfaction and who personally appeared before me and who appeared to understand the meaning and effect of the said document or documents.

IN FAITH AND TESTIMONY whereof I the said Notary have hereunto subscribed my name and affixed my seal at (city) aforesaid this (day) of (month) (year).

(Signature) (Seal) (Full Name of Notary)

Notary Public
 City of (city)
 State of South Australia
 Commonwealth of Australia

Common Law Jurisdictions

A notary, in almost all common law jurisdictions, is a qualified, experienced practitioner trained in the drafting and execution of legal documents. Notaries often record matters of judicial importance as well as private transactions or events where an authenticated record or document is required. The functions of notaries include the preparation of certain types of documents including international contracts, deeds, wills and powers of attorney, and the certification of due execution, the administering of oaths, witnessing affidavits, statutory declarations, and more.

Significant weight is attached to documents that are certified by notaries. These documents are sealed with the notary's seal or stamp and are recorded by the notary in a register maintained and permanently kept by the notary. These are known as "notarial acts." In countries subscribing to the Hague Convention, which abolished the requirement for legalization of foreign public documents, only one further act of certification is required termed an "apostille," a certification issued by a government department. For other countries an "authentication" or "legalization" must be issued by the foreign affairs ministry of the country from which the document is being sent or the embassy, consulate-general or High Commission of the country to which it is being sent.

England

In England there are several classes of notaries. Nearly all of them are solicitors who additionally work as notaries. A second class includes scrivener notaries, who get their name from the Scriveners' Company, and were the only notaries permitted to practice in the City of London until 1999.

Other notaries in England include ecclesiastical notaries, whose functions are limited to the affairs of the Church of England, and non-legally qualified persons who satisfy the master of the faculties of the Archbishop of Canterbury that they possess an adequate understanding of the law. Members of this class are required to pass examinations set by the master of faculties. The regulation of notaries was modernized in the 1990s as a result of England’s Courts and Legal Services Act 1990, section 57.

Within the United Kingdom, a notary public can perform any task a solicitor or other lawyer can perform, in addition to their notary public duties, with the sole exception of representing others before the courts, unless they are also licensed as a barrister.

Australia

In most Australian states and territories, the exception being Queensland, notary publics are appointed by the Australian Supreme Court of the relevant state or territory. Few notaries have been appointed as such for more than one state or territory. Queensland, like New Zealand, persists with the original practice of appointment by the Archbishop of Canterbury acting through the master of the faculties.

Australian notaries, unlike those of the United States, do not hold "commissions" that can expire. Once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. Virtually all Australian notaries are lawyers of several years standing, though very few lawyers are also notaries.

All Australian jurisdictions also have justices of the peace or commissioners for affidavits who can witness statutory declarations and certify documents if the document is to be used only in Australia. Almost all Australian lawyers are also commissioners for affidavits. Justices of the peace are often laypersons who have minimal training but are of proven good character.

In few Australian jurisdictions, justices of the peace may also be minor judicial officers, responsible for issuing certain warrants and handling minor court processes such as after hours bail. Justices of the peace are not permitted to charge for their services. In the United States, the responsibilities and qualifications of notaries public resemble much more of an Australian justice of the peace, rather than an Australian notary.

United States

Unlike most countries, the majority of those commissioned as a notary public in the United States are not licensed attorneys-at-law admitted to the bar. Generally speaking, a U.S. notary public is a person appointed by a state government to serve the public as an impartial witness. Since the notary is a state officer, whether the jurisdiction is common law or civil law is determined on a state-by-state basis; Louisiana is the only civil law state within the United States.

In most states, only qualified candidates can apply for such an appointment, termed a commission. Qualifications vary from state to state, though statutes often bar people from being appointed if holding certain types of criminal convictions, or are below a certain age. All applicants must pass some type of examination regarding notary practices and law to be considered as a candidate. Attorneys at law admitted to practice in New York may become notaries simply by filing the application and fee, without further examination.

Upon receiving notice of their passing the examination, new notaries must go in person to their county clerk, take an oath of office, file a signature card, and receive from the clerk their commission and identification card. They are then said to be "qualified" in that county: though a notary may act anywhere within the state, their official records are kept within counties. Though qualified in only one county, and though able to act in any county, notaries may at their option file "certificates of official character" in counties where they regularly do business merely for the convenience of verifying local acts.

County clerks can authenticate the signature of a notary on a document provided to them, and provide a certificate attesting to this. Every county clerk (who may himself witness documents) must have a notary public available in his office for free service to the public at all times.

Notaries in the United States are much less closely regulated than notaries in civil law jurisdictions or in most other common law countries, typically because U.S. notaries have less authority. In the United States, a non-attorney notary may not offer legal advice or prepare documents (with the exception of Louisiana) and cannot recommend what type of notarization may be necessary. In many cases, a notary cannot authenticate a copy of a document. The most common of notarial acts in the United States are the taking of acknowledgements and oaths. All acts of a notary public must include a venue, or official listing of the place where authenticated, usually in the form of the state and county. The National Notary Association estimates the United States has more than 4.5 million notaries public nationwide.

Civil Law Jurisdictions

The role undertaken by notaries in civil law systems is much greater than in common law countries. Notaries under civil law frequently undertake work done in common law countries by titled officers and other government agencies. The qualifications of notary publics imposed by civil law countries are much greater. In Greece, for example, a practitioner must choose to be either a solicitor or a notary, but cannot act as both.

Notaries of civil law receive a legal education similar to the education received by barristers of the United Kingdom. Civil law notaries participate in areas of private law and often litigate controversy between two individuals or private parties, involving minimal if any intervention by the state. The most common areas in which civil law notaries practice are property transfers, the drafting of private contracts, commercial transactions and other property right litigations. Civil law notaries are without the authority to appear before courts on behalf of individuals or private parties.

Germany

In Germany, the civil law notary plays an important role in contractual agreements relating to special laws such as property laws, land charge certifications, laws of succession, family law, and corporate law. In Germany, a notary is very important to daily business. All transactions must be signed and sealed at the office of the notary public.

The Notar has legal training equivalent to the training of a solicitor. The notary is appointed by the state government and is authorized to certify deeds. He or she provides independent and impartial advice to contractual parties. Depending on the state, German notaries officiate either as a single-profession notary, his or her only profession being a civil law notary, or as both solicitor and notary.

The notary drafts the deeds in accordance with German law and provides legal advice regarding a contract. He will read aloud the deed in front of all parties involved. The deed is signed by all parties, sealed by the notary and is irrevocable.

References
ISBN links support NWE through referral fees

  • The American Heritage Dictionary of the English Language, Fourth Edition. 2004, 2000 by Houghton Mifflin Company.
  • Dictionary of Real Estate Terms. 2004. Barron's Educational Series, Inc.
  • West's Encyclopedia of American Law. 1998. The Gale Group, Inc.

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