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?
According to Article 1367 of the Civil Code, when the signature is affixed by a public office-holder, it confers authenticity to the act.
Article 1369 of the Civil Code defines an authentic instrument as an instrument which has been received, with the required formalities, by a public office-holder having competence and capacity to act. Finally, Article 1371 of the Civil Code provides that the authentic instrument is proof of what the public office holder claims to have personally accomplished or established, until it is recorded as a forgery.
These are therefore documents issued by notaries or judicial officers, but also by courts, mayors, civil registrars, etc.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
Under French law, the authentic instrument has enhanced probative value. In accordance with article 1371 of the Civil Code, in its wording as set out in the Ordinance of 10 February 2016, the authentic instrument is proof of what the public office holder claims to have personally done or established, until it is recorded as a forgery.
In other words, the authentic instrument proves the existence and content of the agreement on which it is based.
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
Enhanced probative value is granted to all references to the document which have been recorded by the public office holder and which have been personally completed or recorded by him/her, for example the date of the document, the place, the identity of the parties, etc.
On the other hand, references to the document which merely relate elements that have been exposed to the notary, without the notary having verified them him/herself, have no enhanced probative value.
The enhanced probative value therefore concerns all the abovementioned elements. With regard to “The content of the parties’ declarations”, the enhanced probative value relates only to the fact that the parties actually made the registered declarations in the presence of the notary who drafted the document.
5. Enhanced probative value can be contested:
Before which authority: The Court of First Instance
According to which procedure (state the applicable rules): Procedure for registering an authentic instrument as being forged (“inscription de faux”) according to Articles 303 to 316 of the Code of Civil Procedure.
Within what timeframe: Authenticity may be challenged at any time, at least until the authenticity of the document is established by an irrevocable decision.
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?
In France, the following acts may or must be realised in the authentic form:
* during the testator’s lifetime:
- Will: notary (if authentic, sealed or international will)
- Gift between spouses, shared gift: notary (except gifts by hand)
* after the testator’s death:
- Civil status documents (birth certificate, marriage certificate, death certificate): civil registrar
- Acceptance of succession: notary
- Renunciation of succession: notary or clerk of the court of first instance
- Act of notoriety: notary
- European Certificate of Succession: notary
- Inventory of the estate involved in the succession: notary or auctioneer, if applicable
- Real estate certificate: notary
- Issue of bequest: notary
- Act of partition: notary
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?
- Marriage contracts
- Civil solidarity pacts (PACS)
- Partnership agreement
- Change of matrimonial regime
- Gift, shared gift
- Consent to adoption
- Recognition of paternity
- Divorce filing by mutual consent
- Lasting power of attorney
- Mandate with posthumous effect
- Dutreil agreement (family business transfer)
- General power of attorney to manage or administer