The Italian Notary

The Italian Notary

 

In Italy, the Notary, under art. 1 of the law regulating the Notary profession, is a public officer who has the role of “receiving deeds between live persons and of last will, giving public faith to them, record them and release copies, certificates and excerpts”. Therefore the Notary performs his duties in relation to sales (notably in the real estate sector), donations, loans and testaments. The Notary is also necessary in some deeds concerning companies, notably the incorporation, the endorsement of shares certificates, the purchase of participations in an S.r.l., capital increases, creation of pledges on participations, the modifications to the by laws and the winding up of companies.

 

Given the fact that the Notary is a public officer, the documents he drafts are “atti pubblici” (public deeds) and, therefore, are granted with the “public faith”. This means that the declarations given by the Notary in a document he drafted are granted with a particular legal status of “full evidence”. This means that its content has to be accepted as true and binding except for the case in which the public deed is invalidated by a particular proceeding.

 

The intervention of the Notary is mandatory for certain deeds and contracts, which for their nature, require a guarantee with regard to compliance with the law, the identity of the parties and the correspondence between the deed and the will of the parties.

 

Such guarantee is provided by the Notary who, under art. 47 of the law regulating the Notary profession, “investigates the will of parties and, under his direction and responsibility, integrally drafts the act”.

 

Moreover, under art. 42 of the same law, the Notary must:

 

a) inform the parties about the possible consequences of the requested transaction, about all the aspects of the legal analysis he has to perform and give them professional advice, also suggesting clauses and element autonomous related to their will and intentions;

 

b) suggest the type of the more appropriate deed in relation to the intentions of the parties, verify the legality and the reciprocal congruence of such intentions, carry out all the preliminary activities required by the parties and draft the deed in the more technically suitable way in order to guarantee its total enforceability and the stability of the legal relationship which originates from such deed;

 

c) give to the parties all the advices requested or considered useful in addition to the public reading of the deed, in order to ensure that the parties perfectly understand the legal meaning of the deed and, notably, the obligations, the particular guarantees, the exemptions or limitations of liability and all the following fulfilments which may arise from the execution of the deed.

 

Those duties have to be accomplished even if the deed has been drafted by third parties, e.g. the lawyers of the parties. Therefore, the Notary has to analyze the document, explain to the parties its content and legal effects, ascertain the respect of the intention of the parties and the compliance of the deed with mandatory law provisions.

 

“Atto Pubblico” and “Scrittura privata”

 

While an “atto pubblico” (public deed) can only be drafted by a Notary, a “scrittura privata” (private document) can be drafted by anyone. The law regulating the Notary profession provides that, even when a Notary is asked to legalize a private document, which has been drafted by others (e.g.: the parties themselves or their consultants), he has to verify the compliance with, and respect of, mandatory rules, even by the public reading of the deed before execution. Therefore, the difference between a public deed and a private deed has now decreased sensibly.

However, the private document legalized by a Notary does not have the same legal value as a public deed, since it does not have the status of “full evidence”, which, for a private document, is limited to the identification of the parties who execute the document made by the Notary.

The legalized private deed cannot be used in all the cases in which the law requires a public deed, such as for the incorporation of limited liability companies, to establish foundations or limited liability partnerships or for donations.

 

Liability

 

In performing his duties, any Notary has to conform to the law, notably to the law regulating the Notary profession, and to the highest degree of diligence. Therefore, the Notary is liable toward his clients both for errors due to negligence and to intentional wrongdoing.

The liabilities due to negligence in which the Notary may incur are covered by an insurance policy entered into by the National Council of the Notaries (“Consiglio Nazionale del Notariato”) and Lloyd’s of London. Moreover, the former created a Guarantee Fund which covers all the liabilities which may arise in case of intentional wrongdoing.

In this way, anyone who requires the assistance of a Notary is protected from losses which may originate both by an error or by intentional wrongdoing by the Notary himself.

In case of severe errors or intentional wrongdoing, the Notary may be subject to suspension or ban, as well as to criminal charges. The Notary is subject to the review of the National Council of the Notaries, of the Ministry of Justice (which performs a thorough inspection every two years) and of the Public Prosecution´s offices.

 

Ariel Nachman
Simmons & Simmons
www.simmons-simmons.com