The Gazette 1973

solicitor. The Ministry of justice has the right to investi-

gate his activities, but in practice supervision of his

conduct is carried out by his local Chamber of Disci-

pline, which consists of a number of his senior collea-

gues. Subject to his liability to this body in the event of

a breach of the strict professional code of conduct and

etiquette and to his client in the event of his negli-

gence, the notary may practise within his area with

almost as much freedom as the solicitor.

Functions of the Notary

The definition then proceeds to enumerate his func-

tions. In the first place, he receives all the

actes

and

contracts which the law requires of the parties desire to

be given the character of authenticity. The word

"acte",

for which the writer has thought fit to retain

the French form, in its original and literal sense means

anything done. Then, by a metonomy, which is found

also with the English word "deed" it has come to mean

not the transaction itself but the document in which

the transaction is recorded. Unlike the English deed,

however, the French

acte

is not necessarily under seal.

The notary being confined to non-contentious busi-

ness, he may receive all the

actes

recording the friendly

transactions of the parties, only excepting the ceremony

of marriage and an

acte d'emancipation

of a child. The

prive),

according as the parties may elect. It is to this

man in society with his fellows, that is, those which

concern the status and fortune of individuals. Among

such

actes

there are those which must necessarily be

passed before a notary if they are to have any validity.

Others, on the contrary, may be passed before him, if it

is desired to give them authenticity, or merely put into

writing and signed by the parties

{actes sous seing

privei,

according as the parties may elect. It is to this

distinction that the definition alludes.

Characteristics of Authenticity

Authenticity is not directly defined in any statute

or code, but it has been described as the attestation of

a fact by a public authority whose declaration is con-

clusive without previous verification of the writing,

until impeached for falsity. And Article 1317 of the

Civil Code defines as

authentique

any instrument

which has been drawn up with the required formalities,

by a public officer duly empowered to practise in the

place where the instrument was received. The four

requirements, therefore, of an

acteauthentique

are :

(1) that a public authority or officer has presided

at its making,

(2) that the

acte

appertains to the attributes of the

public authority or officer who has made or received it,

(3) that the authority or officer has the right to

practise in the place where, and at the time when, the

acte

is passed,

(4) that the

acte

is clothed with all requisite for-

malities.

Of such

actes

there are four categories :

(1)

Actes

of the legislature (eg. statutes).

(2)

Actes

of the administration (e.g. death certifi-

cates).

(3)

Actes

of contentious jurisdiction (eg. court

orders).

(4)

Actes

of voluntary jurisdiction—in particular,

notarial

actes,

which are, therefore, but a species of a

much larger genus.

Effects of Authenticity

The two principal effects of authenticity are, first,

that the

acte

is conclusive evidence until impeached for

falsity, and secondly, that it is executory in itself.

Whereas the first effect is common to all

actes authen-

tiques,

the second only applies to certain of these, in

particular to the

grosses

or notarial

actes.

A gorsse is

a certified copy of an

acte

and concludes with an

executory formula identical with that appearing at the

close of orders by the courts. A creditor armed with

grosse

can proceed to have execution levied on his

debtor's property without needing to have recourse to

a court judgment in his favour. This right to employ

the executory formula, which he shares with the judi-

ciary, is one of the startling characteristics of the

notary and clearly places him in a position of consider-

able power—power which the elaborate method of

nomination and discipline effectually safeguards from

abuse. Moreover, the issue of a

grosse

is hedged with

considerable precautions to prevent its coming into the

hands of a person unauthorised to exercise it.

As to the first effect, which concerns the evidential

value of the acte, one must here distinguish between its

form and its contents. Every

acte

which appears on its

face to be authentic is presumed, until impeached for

falsity, to issue from the public official whose signature

it bears. As to the contents, its probative force varies :

the operations, on the one hand, which are stated to

have been actually performed by the notary or to have

been carried out in his presence are fully proved by the

acte

until impeached; on the other hand, for events

which have taken place other than in the presence of

the notary, the

acte

is proof that the parties have made

the declarations which the

acte

relates, but not that

those declarations are themselves true.

The probative force applies equally against the con-

tracting or participating parties, their heirs and assigns,

as against third parties. Article 1313 of the Civil Code,

which appears to limit the probative force to the parties

to the

acte,

their heirs and assigns, is interpreted as

referring only to the obligatory or contractual force of

the

acte.

Actes authentiques deemed conclusive

Actes authentiques,

therefore, are in some respects

conclusive evidence until impeached for falsity. This

impeachment is a very involved and costly procedure

and may be pursued either in civil law alone or crimin-

ally at the same time. An additional deterrent is that

failure in this procedure may involve the pursuer in

heavy damages with the possibility of criminal pro-

ceedings being taken against him. Impeachment, how-

ever, is not necessary to disprove the declarations of the

parties, which may be opposed by all the ordinary

methods of proof.

In short, the

acte authentique

is an instrument with

a high evidential value or probative force derived from

its form and the authority by whom it is prepared.

Because of its superior value as evidence, an agree-

ment will often be recorded in this form in preference

to using an

acte sous seing prive,

even in cases where

the parties are under no obligation to use the authentic

form.

Acte en minute and acte en brevet

Besides the reception of

actes authentiques

and the

certification of their date, the statutory definition also

refers to another important function of the notary, that

239