1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union regulations?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(I) relates to the signature and the content of the authentic instrument; and
(II) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they? Are these only notarial acts or also acts of other authorities?
All acts that are authenticated by a notary are authentic instruments.
According to Notaries Act § 53 point 1, the following officials and administrative agencies have the right to perform notarial acts instead of a notary:
- consular officers under the conditions provided for in the Consular Act;
- rural municipality and city secretaries, in the certification of copies and transcripts of documents and authentication of power of attorneys for the receipt of pensions, support payments and benefits and authentication of applications for the transfer of pensions and benefits into the bank account of another person;
- public archives, in the certification of the authenticity of copies and transcripts of records and of record notices;
- judges, assistant judges, heads of court offices, court archivists and land registry and registry secretaries, upon the certification of the authenticity of copies and transcripts of documents which are preserved in a court;
- surveyors – upon certification of the authenticity of signature of the owner of an immovable on boundary reports and on the plan for the division, joining, alteration of boundaries and exchange of parts of an immovable;
- persons entitled to perform reallocation – upon certification of the authenticity of signature of the parties to land consolidation and holders of limited real rights on the reallocation plan;
- sworn translators, upon the certification of the correctness of translations of documents, and of the authenticity of copies;
- directors of prisons, upon the certification of the authenticity of signatures of prisoners and persons held in custody, and at the request of a prisoner or a person held in custody, upon the certification of the authenticity of copies and transcripts of documents.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns
- The date on which the authentic instrument was drawn up
- The place where the authentic instrument was drawn up
- The signature by the parties of the authentic instrument
- The parties’ declarations
- Any observation made by the authority within the limits of its competence
- The measures the authority declares to have taken
- Appearance, identification and consent of the parties
All the abovementioned and, in addition to that, the notary verifies the data entered in registries (e.g. land registry).
The notary also establishes the marital status of a person (Notarisation Act § 22 provides that if an object of a transaction may be the joint property of spouses or former spouses, a notary shall indicate in the notarial instrument the marital status of a party and how the notary has established it and why the object of the transaction may be included in the joint property. Upon authentication of a real right contract, a notary shall indicate in the notarial instrument the marital status of the transferee of the object of the transaction and on which grounds the notary has established it. If the object of the transaction will be included in the joint property of spouses, the notary shall also indicate in the notarial instrument the circumstances on the basis whereof the notary has established it. In such case the notary shall indicate both spouses as transferees of the object of the transaction.)
5. Enhanced probative value can be contested:
Before which authority: County Court.
According to which procedure (state the applicable rules): Code of Civil Procedure
Within what timeframe: 3 years
However it should be added, that if the question on the enhanced probative value is contested, it is a dispute between the private parties. In case there is a question that the notary did not fulfil his/her obligations (e.g. showed a wrong date in the act or indicated that a person signed the document but was not actually there, etc.) then it might also be possible to bring disciplinary actions against a notary according to the Notaries Disciplinary Liability Act. In this case a complaint is submitted to the Ministry of Justice. A committee shall be formed for the establishment of disciplinary offences and the committee is composed of a judge, a notary and an official appointed by the Minister of Justice. The penalties imposed on notaries are imposed by the minister of justice based on the findings of the committee and they may be reprimand, fine or removal from office. Disciplinary proceedings may be initiated within 3 years.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
1. What types of family law instruments exist?