The Gazette 1975

not aires (6,260 in 1973) is actuallv less than that of

Avocats (7,600 in 1973).

As he is invested with the characteristics of a local

régistrat,

Notaire

cannot for obvious reasons, authen-

ticate a document outside his own district. This fol-

lows from the rule that only the

Notairc

attached to

the district in which the document . is passed can

authenticate it. Thus, unlike the

Avocat,

in rcspeet

of his essential function of pleading, the Notaire in

his principal function of authenticating documents, has

a monopoly in his own district and a total restriction

outside it. However, he can receive, anywhere in

France and indeed all over the world, a document

valid as an ordinary private deed (

Acte sous scing

privé)

and therefore having no authentic character or

executory force. If the parties then wish the document

to be made an Acfe

authentique,

they will usually give

powers of attorney (

pouvoirs)

to the No'aire's

clcrcs,

enabling the latter to sign on their behalf 'he

acte

authentique

which the

Notaire

will hen draw and

have passed at his office

(Etude).

This chiefly occurs

where the

Nolaire

at'ends the closing of a sale out-

side his own district.

If one compares the administration of a

Notaire's

practice with that of a Solicitor, some interesting dif-

ferences arise in relation to the handling of client

monies, the compensation fund and the obligation to

ensure against profession negligence.

Notaires

are not obliged to maintain separate clicnt

and office accounts, though in practice, the internal

bookkeeping system will naturally differentiate between

funds received from a client for the benefit of the

Notairc

and those held on behalf of a clicnt for his own

benefit. It follows that the control of funds held by a

Notaire

is more intense than the system in Ireland of

furnishing an accountant's ccrtificatc. The

Notaire's

accounts are examined annually by inspectors attached

to the local Bar (

Conseil Regional du Notariat

). More-

over occasional spot chccks arc carried out in cases where

such intervention is necessary. This has the important

effect that the local Bar can intervene, through its own

duly appointed officers, at least once a year and at any

other t ime to examine the financial affairs of any

practising

notaire.

The

Notaire

is also controlled in his choice of bank-

ers i.e. can use only certain semi-state banks, namely

the

Caisse des Depots et des Consignations, Credit Agri-

cole,

and

Comptes Postaux.

Funds deposited in these

institutions arc used by the State, notably for state loan

transactions.

The

Notaire's

compensation

fund

— la

Caisse de

Garantie

— was inaugurated in 1934 and reformed in

1955, due mainly to dcfects in the original sys'oni,

notably costly administrative expenses and an accumu-

lative of enormous funds out of proportion to the

numbers of claims settled from the compensation fund.

The 1955 legislation established a Caisse (Fund) in

each region of France under the control of the local Bar

>n addition to a Centrrl Caisse under the control of

the Supreme Council of the Notarial profession (Cou-

seil shpéricur du Notariat).

This structure replaces the

Multitude of local caisses which existed hitherto.

Each regional Cnisse receives its funds in the form

°f annual contributions from

Notaircs

practising in

the particular region. The regional Caisee must settle

all claims arising within its territory. It must give 75'A

of its lunds to the

Central Caisse

thereby eliminating

the earlier problem of local funds reaching dispro-

portionate levels.

In addition, to the last mentioned source of income;

the central Caisse has a second source of finance, name-

ly, a capital payment made by each Notairc on qualify -

ing. The funds of the central Caisse are used for basi-

cally two purposes, an emergency fund for any regional

Caisse not having sufficient funds to meet a particular

claim and secondly, a loan fund available 'o those seek-

ing to enter the profession, enabling them to undertake

their studies and ultimately to purchase a practice.

Apart from being obliged to contribute to the com-

pensation fund, the

Notaire

is also compelled to take

professional ncgligencc insurance. The professional neg-

ligence policy covers the

Notaire's

civil liability while

the compensation fund covers his penal (delictual) lia-

bility. The public, as clients of the

Notaire,

are thus

completely protected in their dealings with the mem-

bers of :hc profession.

The

Notaires

were not affcctcd by the reform of 1972,

which, it will be called, comprised a modest fusion of

various branches of the legal profession. The exemption

of the Notaircs from :hese reforms is indicative of the

extent to which their position in the French framework

is so firmly established and well defined. It is likclv

that any future reforms affccting

Notaires

will be made

entirely independent of the other branches of the legal

profession. No major reforms are contemplated at the

moment.

Avoucs and Agrees

The

Avoués

and

Agréés

have been the two branches

of :he profession most affected by the 1972 reforms. The

Agree, who had a monopoly of pdvocacy before the

Commercial Courts, has been completely fused into the

profession of Avocat.

The Avoué, who is principally concerned wi:h the

procedural aspects of litigation, has retained his pre-

vious status in so far

Appeal Courts are concerned.

For all other purposes, the

Avoué

has been merged into

the profession of

Avocat.

Thiis, in the present slate

of French litigation, the case will normally be conducted

by a single Avocat up to the hearing in the Court of

first instance. If an appeal is lodged, the

Avocat

obliged to instruct an

Avoué 'o

act in conjunction with

him for the purposes of the appeal hearing. This is

clearly an unsatisfacory situation. It runs contrary to

several of the main objectives behind the 1972 reforms,

particularly the intended saving in litigation cos's. Of

course, the latter problem can be avoided if the orig-

inal

Avocat

instructed was previously an

Avoué.

practice, however, litigants rarely have regard to this

consideration.

As might be expected in the event of a fusion in

Ireland or Great Britain, one of the immediate effects

in Francc was a rush on the part of the Avocats to

rssimilatc former Avoués into their Cabinets, particul-

?rly in the case of firms having a large litigation prac-

tice.

This tendency and the overall effects of the fusion