The Gazette 1973

the common law, were the reasons why that common law never needed, and therefore never recognised, an official of the civil or canon law. The Reformation of the sixteenth century, and the victory of the common law over its rivals in the seventeenth century, reduced the civil and ecclesiastical law to a subordinate posi- tion; and the officials recognised by them naturally shared their fate." ( Holdsworth, H E L, vol. 5, p. 115.) It was the attorney of the common law who attracted to his profession almost all the functions of the French notary, apart from the matter of authenticity. His final triumph may be seen in the fact that the great majority of notaries public are also practising solicitors. In France, on the other hand, the avoué did not ex- pand his field of activity beyond his original role of taking the formal acts in the law on behalf of his client and his office has now been merged with that of the avocat except before the cours d'appel. The functions, which in England have accrued to the solicitor, in France have passed to the notary, so that, except for the absence of litigation, his daily work is remarkably like that of the solicitor. There is as it were, a common territory in which both operate, and on either side a domain special to each—the solicitor has his litigation and the notary his authenticity. Notary confined to non-contentious business To this distinction between contentious and non- contentious business the notary remains committed. That this is not a merely French distinction but of world-wide significance can be seen from a speech made at the Tenth Congress of the International Union of Latin Notaries in Montevideo in 1969 :

In his capacity, however, as a Commissioner for Oaths, the solicitor may give special evidential value to docu- ments sworn or declared before him, as he may also if he acts as a notary public (the French notary lost his epithet of "public" after 1830). English Notaries Public It was to confer authenticity that the office of notary public was established in England at an early date (per- haps by the end of the thirteenth century). The de- velopment of this office is an interesting result of the contract of two distinct systems of law, common and civil. In the Middle Ages this contact was closest in the ecclesiastical sphere, for the Western Church was a powerful international organisation. It was, therefore, the Church which, in order to bring England into conformity with the civil law countries, appointed the first officials in this country to authenticate documents for transmission to the Continent. The Archbishop of Canterbury, through the Master of the Court of Facul- ties, still appoints notaries public in England, but their original ecclesiastical function has been largely lost in their commercial attributes. For the growth of inter- national commerce found the office useful for its own special purposes, particularly in matters of bills of ex- change and shipping, matters which often involve a foreign element. Certificate deemed an authentic act The certificate of a notary public, bearing his signa- ture and official seal, is accepted as proof of the acts done in his presence and attested by him in all countries where notarial actes are recognised. Thus, in French terminology, the certificate is an acte authentique. The raison d'etre of the notary public is to live this cachet of authenticity to documents intended to be used abroad; this is the great difference between the notary public and the French notary : French law compels the parties to utilise the authentic form for many transac- tions and in practice it has been seen that his form is often adopted voluntarily, but in England its use is exceptional, other than for documents to be trans- mitted abroad. The relative unimportance of the notary public when compared with the French notary is due not to any great dissimilarity in the nature of his office but rather to the narrowness of the functions attributed to him. "The backward economic condition of England in the Middle Ages, and the insularity of

"At a time when clients and their needs are changing and when some persons believe it would be a pro- gressive step to adopt the principle of a unified pro- fession imitated from Anglo-Saxon practice and based upon the confusion of the contractual and contentious domains, we consider it right to reaffirm in the interest of society the distinction between contractual and con- tentious business, the quantity of the latter being in inverse proportion tot he quality of the former." But whether the distinction may become less self- evident as British solicitors become more widely in- volved in the enlarged Common Market is an interest- ing speculation. Certainly, solicitors will find in French notaries an invaluable source of help and advice in commercial, company and property transactions on the Continent of Europe." SHAREHOLDER CONTROL IN IRISH COMPANIES By Jtihn Temple Lang

The differences between Irish company law, under the Companies Act, 1963, and the company law of Britain as it was embodied in the UK Companies Act, 1948, are few in number and some of them are not of great importance. One of the most important of them, how- ever, is so inconspicuous, and seems to have been so rarely recognised, that it is worthwhile to draw the attention of the legal profession to it specifically. Under regulation 80 of part I of Table A of the Companies Act, 1963, and under the corresponding regulation 80 of part I of Table A under the Com- panies Act, 1948 and regulation 82 of part I of Table A of the Northern Ireland Companies Act, 1960 the

business of a company is placed in the hands of the directors. In each case the powers of the directors are expressed to be subject to the provisions of the Articles of Association of the company (including Table A) and the provisions of the relevant Act. The UK and Nor- thern Ireland Acts go on to say that the powers of the directors are to be subject "to such regulations being not inconsistent with the aforesaid regulations (i.e. the Articles and Table A) or provisions (i.e. the provisions of the Act) as may be prescribed by the company in general meeting". In contrast, the 1963 Act provides that the powers of the directors are to be subject, "to such directions, 241