The Gazette 1973

THE FRENCH NOTARY LEGAL EUROPE By Professor L. Neville Brown (Birmingham) (Reprinted by kind permission from the English Law Society Gazette) Who is the notary? In France, as in the so-called Latin countries gene- rally, the organisation of the legal profession is based upon a functional distinction between contentious and non-contentious business. This resembles, but is not identical with, the Anglo-American distinction between ' court lawyers" and "office lawyers". In France con- tentious business is conducted primarily by Avocats who form the Bar, in conjunction with other specialised groups such as the avoués who have the monopoly of the written procedure at civil appellate level. Non- contentious business is the peculiar, though not ex- clusive, province of the notaire. For his monopoly con- sists, not simply in the giving of legal advice (the avocat and others do this too), but in his capacity to draw documents having authentic force. This charac- ter of authenticity is the raison d'etre of the notarial pro- fession and requires full explanation for the benefit of English lawyers to whom term and concept alike are strange. L'authenticité is the key to an understanding of "le notariat", as the notaries describe themselves collec- tively. Notaries are defined by statute as the public officials (officiers publics ) established : (1) to receive all the actes and contracts which the law requires or the parties desire to be given the charac- ter of authenticity attached to the actes of a public authority; (2) to establish their date; and (3) to preserve their custody and to issue certified copies. Before analysing this complex definition, it will be helpful to descrize briefly the organisation of the notarial profession. Organisation of Notaries Notaries divide into three classes : (1) those practising within the ressort or area of jurisdiction of a cour d'appel; (2) those practising within the area of a tribunal de grande instance; (3) those practising within the area of a tribunal d'instance. The jurisdiction of a notary and his character of public official are strictly limited to the confines of his area : within the area he is fully competent, but outside it, he can receive no acte nor confer authenti- city. However, an acte so made outside his area may still be valid as, a private document under band (acte sous seing prive), if signed by all the parties. There are heavy penalties for infringing this rule of jurisdiction. The conditions of admission are (1) that the appli- cant enjoys the rights of a French citizen, (2) that he has satisfied the demands of military service, (3) that

he is over 25 years' of age, (4) that he has served the necessary period of normally two years apprenticeship stage) in a notary's office, (5) that he has passed the professional examinations, and (6) that he has received a favourable report on his moral fitness from the President of the Chamber of Discipline for the area in which he proposes to practise. To this list of conditions it used to be necessary to add that the aspiring notary had to command con- siderable wealth, so as to be able to buy a practice or have hopes of inheriting one. This was because until 1969 a notary could not work in partnership with another notary nor be employed by another notary as an assistant. Since that date, however, partnerships have been permitted, and there are already some 300 such partnerships in existence. This development as well as the wider availability of loans for the purchase of practices is gradually broadening the social base of the profession. (Strictly speaking, it is not the practice one buys but rather the right to be presented to the office held by the outgoing notary.) Of the various lawyers or para-legal professions in France, the most numerous is the Bar with some 7,600 avocats (of whom 3,700 practise in Paris). The notaries are not far short of this number with 6,260 notaries in practice. Moreover, whilst an avocat usually works single-handed with perhaps one secretary-typist, the notary is often the head of a large "law firm" with several senior clercs (or legal executives) and a host of secretaries. Thus, the staff employed in notarial offices has grown from 26,000 in 1960 to almost 36,000 in 1969. This justifies the claim of the notariat to be by far the largest legal service operating in France. Statutory definition It is now possible to return to the statutory defini- tion of the notary. This begins by referring to notaries as the public officials. This emphasises that they have a monopoly of their particular functions, which cannot be usurped by other professions, officials or individuals. We should not be misled by the description officiers publics. The term is used vaguely, and the notary should in no way be regarded as the equivalent of a British civil servant, comparable (say) with a Registrar of Marriages. Rather the term should be understood in the sense that the notary is an appointee of the state, from which source he derives his attributes and his power to give to his actes executory force. The meaning of this force executoire will be discussed later. He is also a public official inasmuch as he has been appointed to exercise a public calling. Like the innkeeper and the common carrier in England, he is then under an obliga- tion to lend his services to those who request them. For such services he is, of course, entitled to be paid, his scale of charges being fixed by law. With the important qualification that he is not free to reject a client, the position of the notary is thus similar to that of the 238