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THE FRENCH NOTARY
LEGAL EUROPE
By Professor L. Neville Brown (Birmingham)
(Reprinted by kind permission from the English Law
Society Gazette)
Who is the notary?
In France, as in the so-called Latin countries gene-
rally, the organisation of the legal profession is based
upon a functional distinction between contentious and
non-contentious business. This resembles, but is not
identical with, the Anglo-American distinction between
' court lawyers" and "office lawyers". In France con-
tentious business is conducted primarily by
Avocats
who form the Bar, in conjunction with other specialised
groups such as the
avoués
who have the monopoly of
the written procedure at civil appellate level. Non-
contentious business is the peculiar, though not ex-
clusive, province of the
notaire.
For his monopoly con-
sists, not simply in the giving of legal advice (the
avocat
and others do this too), but in his capacity to
draw documents having authentic force. This charac-
ter of authenticity is the
raison d'etre
of the notarial pro-
fession and requires full explanation for the benefit of
English lawyers to whom term and concept alike are
strange.
L'authenticité
is the key to an understanding of
"le notariat",
as the notaries describe themselves collec-
tively.
Notaries are defined by statute as the public officials
(officiers publics
)
established :
(1) to receive all the
actes
and contracts which the
law requires or the parties desire to be given the charac-
ter of authenticity attached to the
actes
of a public
authority;
(2) to establish their date; and
(3) to preserve their custody and to issue certified
copies.
Before analysing this complex definition, it will be
helpful to descrize briefly the organisation of the
notarial profession.
Organisation of Notaries
Notaries divide into three classes :
(1) those practising within the ressort or area of
jurisdiction of a
cour d'appel;
(2) those practising within the area of a
tribunal
de grande
instance;
(3) those practising within the area of a
tribunal
d'instance.
The jurisdiction of a notary and his character of
public official are strictly limited to the confines of
his area : within the area he is fully competent, but
outside it, he can receive no
acte
nor confer authenti-
city. However, an
acte so
made outside his area may
still be valid as, a private document under band
(acte
sous seing prive),
if signed by all the parties. There are
heavy penalties for infringing this rule of jurisdiction.
The conditions of admission are (1) that the appli-
cant enjoys the rights of a French citizen, (2) that he
has satisfied the demands of military service, (3) that
he is over 25 years' of age, (4) that he has served the
necessary period of normally two years apprenticeship
stage)
in a notary's office, (5) that he has passed
the professional examinations, and (6) that he has
received a favourable report on his moral fitness
from the President of the Chamber of Discipline
for the area in which he proposes to practise. To
this list of conditions it used to be necessary to
add that the aspiring notary had to command con-
siderable wealth, so as to be able to buy a practice
or have hopes of inheriting one. This was because until
1969 a notary could not work in partnership with
another notary nor be employed by another notary as
an assistant. Since that date, however, partnerships
have been permitted, and there are already some 300
such partnerships in existence. This development as
well as the wider availability of loans for the purchase
of practices is gradually broadening the social base of
the profession. (Strictly speaking, it is not the practice
one buys but rather the right to be presented to the
office held by the outgoing notary.)
Of the various lawyers or para-legal professions in
France, the most numerous is the Bar with some 7,600
avocats
(of whom 3,700 practise in Paris). The notaries
are not far short of this number with 6,260 notaries in
practice. Moreover, whilst an
avocat
usually works
single-handed with perhaps one secretary-typist, the
notary is often the head of a large "law firm" with
several senior
clercs
(or legal executives) and a host of
secretaries. Thus, the staff employed in notarial offices
has grown from 26,000 in 1960 to almost 36,000 in
1969. This justifies the claim of the
notariat
to be by
far the largest legal service operating in France.
Statutory definition
It is now possible to return to the statutory defini-
tion of the notary. This begins by referring to notaries
as the public officials. This emphasises that they have
a monopoly of their particular functions, which cannot
be usurped by other professions, officials or individuals.
We should not be misled by the description
officiers
publics.
The term is used vaguely, and the notary should
in no way be regarded as the equivalent of a British
civil servant, comparable (say) with a Registrar of
Marriages. Rather the term should be understood in the
sense that the notary is an appointee of the state, from
which source he derives his attributes and his power
to give to his
actes
executory force. The meaning of this
force executoire
will be discussed later. He is also a
public official inasmuch as he has been appointed to
exercise a public calling. Like the innkeeper and the
common carrier in England, he is then under an obliga-
tion to lend his services to those who request them. For
such services he is, of course, entitled to be paid, his
scale of charges being fixed by law. With the important
qualification that he is not free to reject a client, the
position of the notary is thus similar to that of the
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