The Gazette 1973

Effects of Authenticity The two principal effects of authenticity are, first, that the acte is conclusive evidence until impeached for falsity, and secondly, that it is executory in itself. Whereas the first effect is common to all actes authen- tiques, the second only applies to certain of these, in particular to the grosses or notarial actes. A gorsse is a certified copy of an acte and concludes with an executory formula identical with that appearing at the close of orders by the courts. A creditor armed with a grosse can proceed to have execution levied on his debtor's property without needing to have recourse to a court judgment in his favour. This right to employ the executory formula, which he shares with the judi- ciary, is one of the startling characteristics of the notary and clearly places him in a position of consider- able power—power which the elaborate method of nomination and discipline effectually safeguards from abuse. Moreover, the issue of a grosse is hedged with considerable precautions to prevent its coming into the hands of a person unauthorised to exercise it. As to the first effect, which concerns the evidential value of the acte, one must here distinguish between its form and its contents. Every acte which appears on its face to be authentic is presumed, until impeached for falsity, to issue from the public official whose signature it bears. As to the contents, its probative force varies : the operations, on the one hand, which are stated to have been actually performed by the notary or to have been carried out in his presence are fully proved by the acte until impeached; on the other hand, for events which have taken place other than in the presence of the notary, the acte is proof that the parties have made the declarations which the acte relates, but not that those declarations are themselves true. The probative force applies equally against the con- tracting or participating parties, their heirs and assigns, as against third parties. Article 1313 of the Civil Code, which appears to limit the probative force to the parties to the acte, their heirs and assigns, is interpreted as referring only to the obligatory or contractual force of the acte. Actes authentiques deemed conclusive Actes authentiques, therefore, are in some respects conclusive evidence until impeached for falsity. This impeachment is a very involved and costly procedure and may be pursued either in civil law alone or crimin- ally at the same time. An additional deterrent is that failure in this procedure may involve the pursuer in heavy damages with the possibility of criminal pro- ceedings being taken against him. Impeachment, how- ever, is not necessary to disprove the declarations of the parties, which may be opposed by all the ordinary methods of proof. In short, the acte authentique is an instrument with a high evidential value or probative force derived from its form and the authority by whom it is prepared. Because of its superior value as evidence, an agree- ment will often be recorded in this form in preference to using an acte sous seing prive, even in cases where the parties are under no obligation to use the authentic form. Acte en minute and acte en brevet Besides the reception of actes authentiques and the certification of their date, the statutory definition also refers to another important function of the notary, that 239

solicitor. The Ministry of justice has the right to investi- gate his activities, but in practice supervision of his conduct is carried out by his local Chamber of Disci- pline, which consists of a number of his senior collea- gues. Subject to his liability to this body in the event of a breach of the strict professional code of conduct and etiquette and to his client in the event of his negli- gence, the notary may practise within his area with almost as much freedom as the solicitor. Functions of the Notary The definition then proceeds to enumerate his func- tions. In the first place, he receives all the actes and contracts which the law requires of the parties desire to be given the character of authenticity. The word "acte", for which the writer has thought fit to retain the French form, in its original and literal sense means anything done. Then, by a metonomy, which is found also with the English word "deed" it has come to mean not the transaction itself but the document in which the transaction is recorded. Unlike the English deed, however, the French acte is not necessarily under seal. The notary being confined to non-contentious busi- ness, he may receive all the actes recording the friendly transactions of the parties, only excepting the ceremony of marriage and an acte d'emancipation of a child. The prive), according as the parties may elect. It is to this man in society with his fellows, that is, those which concern the status and fortune of individuals. Among such actes there are those which must necessarily be passed before a notary if they are to have any validity. Others, on the contrary, may be passed before him, if it is desired to give them authenticity, or merely put into writing and signed by the parties {actes sous seing privei, according as the parties may elect. It is to this distinction that the definition alludes. Characteristics of Authenticity Authenticity is not directly defined in any statute or code, but it has been described as the attestation of a fact by a public authority whose declaration is con- clusive without previous verification of the writing, until impeached for falsity. And Article 1317 of the Civil Code defines as authentique any instrument which has been drawn up with the required formalities, by a public officer duly empowered to practise in the place where the instrument was received. The four requirements, therefore, of an acteauthentique are : (1) that a public authority or officer has presided at its making, (2) that the acte appertains to the attributes of the public authority or officer who has made or received it, (3) that the authority or officer has the right to practise in the place where, and at the time when, the acte is passed, (4) that the acte is clothed with all requisite for- malities. Of such actes there are four categories : (1) Actes of the legislature (eg. statutes). (2) Actes of the administration (e.g. death certifi- cates). (3) Actes of contentious jurisdiction (eg. court orders). (4) Actes of voluntary jurisdiction—in particular, notarial actes, which are, therefore, but a species of a much larger genus.