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notary is not acting on behalf of either party. It
is for the vendors and purchaser to agree their
own
terms, and the notary's job
is merely to
embody them in the document; if a dispute arises,
the notary cannot take sides, since contentious
work
is outside his field, and falls within the
province of the
avoue,
and the
avocat.
This is not
to say that the notary does not have his own
clientele, which has a value when it comes to the
transfer of a practice, or that the client does not
think and speak of "my notary", but the fact that
the notary is a public official, and cannot under–
take litigation, gives a different character to the
relationship between lawyer and cleint in con–
veyancing matters.
Conveyancing Procedure
Is there a saving of work, and as a result of this or
otherwise, a saving of cost? To answer
these
questions we must look a little more closely at the
procedure of French conveyancing, and the vari–
ous heads of expenditure contained in
the bill
finally presented to each party.
The two-stage system of contract followed by
conveyance is unknown in France; by art. 1583
of the Civil Code, a sale is perfected between the
parties, and the property, whether realty or per–
sonalty, passes to the purchaser automatically as
against the vendor as soon as the subject-matter
of the sale and the price have been agreed on,
even before the goods are delivered and the price
paid. It will be observed that the effect of this
article is limited by the words "between the parties
... as against the vendor", and
the result
in
practice is that after conclusion of a contract for
the sale of land, and before registration
(publicite
fonciere),
the position of the parties is not unlike
that of the parties between contract and convey–
ance in England. In order to obtain a title good
against all the world, the purchaser must register
his deed of sale
(acte de vente)
at the Bureau des
Hypotheques-'for the locality; until this is done,
his title can be upset by any other claimant, even
one claiming under a subsequent disposition by
the same vendor, if the latter has registered his
deed at the Bureau des Hypotheques the first.
Article 1583 refers only to agreement having
been reached, and requires no memorandum in
writing; hence the sale is complete, and the prop–
erty passes, even under an oral contract for sale
of land. This rule is, however, so limited by other
rules as to be almost contradicted; in the first
place oral evidence is not generally admitted in
French courts of a transaction involving property
worth more than 50 francs (about £4), and in
the second place an unwritten contract cannot be
produced for registration to the Bureau des Hypo–
theques. A written document is therefore required,
and this can be prepared privately by anyone,
without the intervention of a notary; but apart
from the fact that such a document will not
possess
"date certaine",
the profession's mono–
poly of conveyancing is preserved by the rule that
only a notarial document will be accepted by the
Bureau des Hypotheques for registration. The
parties to a private
acte de vente
must therefore,
to validate the title against all the world, have
the document annexed to a notarial document,
and the notary is entitled to charge for this the
same fee as that which he would have charged
had he prepared the original
acte de vente.
The form of an
acte de vente
prepared by a
French notary at first sight bears little relationship
to an English conveyance. It begins with words
which recall a declaration before a commissioner
for oaths: "Before me the undersigned Jean Du-
pont, Notary at Clochermerle, have appeared
Monsieur A arid Monsieur B, etc."; there follow
the names, addresses, occupations, and dates and
places of birth of the parties, to identify them
beyond all doubt; the body of the document is
expressed as setting out what the parties have
told
the notary are
their intentions. The
last
words are always
"Dont acte",
i.e., "Of which
[I have prepared] this record." The content of
the deed is stylised an elaboration of the basic
terms agreed by the parties, and containing stan–
dard covenants, etc., of which the parties will
never have heard before entering the notary's
office.
Conveyance and abstract of title in one
On closer examination, the notarial deed of sale
is surprisingly
like an English conveyance and
abstract of title rolled into one. The parties de–
clare that they sell and purchase such-and-such
a property, which
is described
in considerable
physical detail; in place of "All that messuage or
dwelling-house known as
.
. ." we find, e.g., "A
dwelling-house on three floors with cellar below,
on the ground floor a salon, kitchen, dining-room,
scullery, study, and w.c., on the first floor three
bedrooms, .a -bathroom and a storeroom, attics
above; outside a garage and a shed, small railed
garden in front, garden behind," and so on. It
has always been notarial practice to include a
reference to the
cadastre,
the
local "ordnance
survey", and a statement of the area, even in a
sale of a small town house; in towns where there
exists an up-to-date
cadastre,
revised as a result
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