The Gazette 1967/71

notary is not acting on behalf of either party. It is for the vendors and purchaser to agree their own terms, and the notary's job is merely to embody them in the document; if a dispute arises, the notary cannot take sides, since contentious work is outside his field, and falls within the province of the avoue, and the avocat. This is not to say that the notary does not have his own clientele, which has a value when it comes to the transfer of a practice, or that the client does not think and speak of "my notary", but the fact that the notary is a public official, and cannot under– take litigation, gives a different character to the relationship between lawyer and cleint in con– veyancing matters. Conveyancing Procedure Is there a saving of work, and as a result of this or otherwise, a saving of cost? To answer these questions we must look a little more closely at the procedure of French conveyancing, and the vari– ous heads of expenditure contained in the bill finally presented to each party. The two-stage system of contract followed by conveyance is unknown in France; by art. 1583 of the Civil Code, a sale is perfected between the parties, and the property, whether realty or per– sonalty, passes to the purchaser automatically as against the vendor as soon as the subject-matter of the sale and the price have been agreed on, even before the goods are delivered and the price paid. It will be observed that the effect of this article is limited by the words "between the parties ... as against the vendor", and the result in practice is that after conclusion of a contract for the sale of land, and before registration (publicite fonciere), the position of the parties is not unlike that of the parties between contract and convey– ance in England. In order to obtain a title good against all the world, the purchaser must register his deed of sale (acte de vente) at the Bureau des Hypotheques-'for the locality; until this is done, his title can be upset by any other claimant, even one claiming under a subsequent disposition by the same vendor, if the latter has registered his deed at the Bureau des Hypotheques the first. Article 1583 refers only to agreement having been reached, and requires no memorandum in writing; hence the sale is complete, and the prop– erty passes, even under an oral contract for sale of land. This rule is, however, so limited by other rules as to be almost contradicted; in the first place oral evidence is not generally admitted in French courts of a transaction involving property worth more than 50 francs (about £4), and in

the second place an unwritten contract cannot be produced for registration to the Bureau des Hypo– theques. A written document is therefore required, and this can be prepared privately by anyone, without the intervention of a notary; but apart from the fact that such a document will not possess "date certaine", the profession's mono– poly of conveyancing is preserved by the rule that only a notarial document will be accepted by the Bureau des Hypotheques for registration. The parties to a private acte de vente must therefore, to validate the title against all the world, have the document annexed to a notarial document, and the notary is entitled to charge for this the same fee as that which he would have charged had he prepared the original acte de vente. The form of an acte de vente prepared by a French notary at first sight bears little relationship to an English conveyance. It begins with words which recall a declaration before a commissioner for oaths: "Before me the undersigned Jean Du- pont, Notary at Clochermerle, have appeared Monsieur A arid Monsieur B, etc."; there follow the names, addresses, occupations, and dates and places of birth of the parties, to identify them beyond all doubt; the body of the document is expressed as setting out what the parties have told the notary are their intentions. The last words are always "Dont acte", i.e., "Of which [I have prepared] this record." The content of the deed is stylised an elaboration of the basic terms agreed by the parties, and containing stan– dard covenants, etc., of which the parties will never have heard before entering the notary's office. Conveyance and abstract of title in one On closer examination, the notarial deed of sale is surprisingly like an English conveyance and abstract of title rolled into one. The parties de– clare that they sell and purchase such-and-such a property, which is described in considerable physical detail; in place of "All that messuage or dwelling-house known as . . ." we find, e.g., "A dwelling-house on three floors with cellar below, on the ground floor a salon, kitchen, dining-room, scullery, study, and w.c., on the first floor three bedrooms, .a -bathroom and a storeroom, attics above; outside a garage and a shed, small railed garden in front, garden behind," and so on. It has always been notarial practice to include a reference to the cadastre, the local "ordnance survey", and a statement of the area, even in a sale of a small town house; in towns where there exists an up-to-date cadastre, revised as a result 29