The Private International Law of Authentic Instruments

Jonathan Fitchen

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509907649
• Edition: 1
• Topic: Droit
• Subtopic: Conflit de lois

This helpful book will equip the lawyer – whether notary, barrister or solicitor – with the legal information necessary to understand what an authentic instrument is (and what it is not), what it can (and what it cannot) be used to do in the course of contentious or noncontentions legal proceedings. The book takes a two part approach. Part one focuses on an explanation of the nature of the foreign legal concept of an authentic instrument, setting out the modes of creation, typical domestic evidentiary effects and the typical domestic options to challenge such authentic instruments. Part two then examines and analyses authentic instruments under specific European Union private international law regulations, focusing on the different cross-border legal effects allowed and procedures that apply to each such. Rigorous, authoritative and comprehensive, this will be an invaluable tool to all practitioners in the field.

PART I

Domestic Laws

1

The Authentic Instrument as a Legal Institution of the Civil Law

This chapter considers the authentic instrument in abstract as a constituent legal institution of the civil law. This is necessary not only because this book is aimed at a readership which may well be unfamiliar with the authentic instrument as a constituent of a civil law legal system but is also necessary as a prelude to the consideration of the concrete examples of the notarial authentic instrument offered by chapter two.

Despite the introduction of a range of EU private international law measures relevant to authentic instruments, the domestic nature and domestic use of authentic instruments is as yet unharmonised by EU law. For historical reasons there are certain domestic continuities concerning authentic instruments in the francophone EU Member States and in other places in which Napoleonic laws were influential.¹ Apart from such variable historical continuities, the domestic laws of the Member States concerning authentic instruments remain unharmonised by EU law. EU private international law, relying on the Unibank decision of the European Court of Justice in 1999, specifies only the minimum qualifying characteristics for a domestic authentic instrument to fall within one of the Regulations that comprise EU private international law: it goes no further in terms of harmonisation.² Accordingly, authentic instruments, and the domestic laws that describe them, may vary quite considerably on points of detail and practice across the legal systems of the 22 EU Member States that employ them.

The absence of European harmonisation concerning the domestic law of authentic instruments means that it is necessary to consider something of the domestic laws to properly understand the authentic instrument as a domestic legal institution. This consideration is first provided in this chapter in abstract and then, in chapter two via concrete examples drawn from the French and the German legal systems to offer a broadly representative illustration of the domestic law of notarial authentic instruments in the main EU Member State legal systems.

I.The Authentic Instrument in Abstract

Authentic instruments (whether created by notaries or by other public authorities) are creatures of those codified civil law legal systems that are based upon legal principles and notions derived from Roman and from medieval canon laws in the territories which once formed the western part of the Roman Empire. Considerations of space prevent a full discussion of the development of what is now the authentic instrument from these early times to the point in Napoleonic France at which it attained a fair approximation of its modern domestic form.³ Though the ‘modern’ domestic form of the authentic instrument may be dated from the decision of any given civil law legal system to employ it in their codification of civil and procedural laws, this ‘modern’ form, considered in notarial terms, usually closely resembles the immediate pre-codification authentic instruments in that territory. This intrinsic continuity reflects the ubiquity and indeed ordinary nature of the notarial authentic instrument as a legal institution in the legal systems and territories that have chosen to employ it. Though the authentic instrument, especially in its notarial form, is quite foreign to the legal systems of the common law, it is one of the more mundane provisions of the civil law; so much so that though a case can be made to suggest that the codifications of civil law respectively undertaken in the original six Member States founding the EU (all of which featured authentic instruments) had radical aspects, the authentic instrument is a poor exemplar of such radicalism.

Pre- and post-codification, the authentic instrument was commonly either a required or a permitted means by which particular legal transactions could be effected by the party or parties in question by appearing before a notary in a civil law legal system. By requiring or permitting various transactions to proceed before a notary (or other public official) via an authentic instrument, the State thereby compelled the creation of a written record of what was then the best documentary evidence possible of the informed and voluntary participation of a party (or parties) in what that State chose to regard as the most important types of domestic juridical acts/legal transactions. The additional permitted uses of an authentic instrument at the option of a party (or parties) to a juridical act further extended the relevance of the authentic instrument to matters which the parties considered to be important enough to merit this form. The legal institution of the authentic instrument thus offers a means by which a range of important juridical acts may be recorded and effected in a documentary form that benefits from the domestic certainty and evidential advantages associated with a public document.

The recording aspect of the notarial authentic instrument stems from the fact that, classically speaking, the notary always retains the original of any authentic instrument he draws-up in his official archive (or Protocol): he will only issue authentic copies (or enforceable copies) of that authentic instrument to the parties and to other persons/institutions legally entitled to demand such copies. The record-keeping duty of the notary extends beyond his professional life; the traditional rule is that when he retires, he must pass on his archive to another practising notary who will thereafter act as its custodian until he, in turn, passes it all on to another such notary. The traditional deposit and custody rules have however been amended in many legal systems to require the deposit of notarial archives of a certain vintage within a central registry. That said, for as long as the traditional deposit and custody rules endure, the State, de facto, benefits from a widely distributed and privately maintained register of all the matters concluded by notarial authentic instrument. The costs of compiling and maintaining this ‘register’ are not borne by the State, they are mostly shifted to the party or parties involved in the making of the juridical act. Cost-shifting is also visible in State requirements concerning the need for relevant private parties to produce authentic copies of notarial authentic instruments to facilitate, inter alia, enforcement, official registration requirements (eg registration of matters in the relevant State Land Registry) and to establish that taxable events have occurred at a given date and for a given value between given parties.

The evidential advantages of a notarial authentic instrument arise because the civil law legal systems which use this legal institution regard it as a type of public document. It is a public document either because it is drawn-up by a public official or because it is issued by a public office. The structural relationship of notarial authentic instruments to the broader civil law category of public documents can be illustrated by borrowing from the system of classification of biology. If the public document is regarded as the ‘family’ then the category of authentic instruments may be regarded as a ‘genus’ derived from that wider ‘family’ of civil law public documents. The ‘genus’ of authentic instruments may be further subdivided into at least two different ‘species’ of authentic instrument: the first species comprises official certificates issued by public registries or by public offices such as courts;⁴ the second species, with which this book is concerned, comprises those authentic instruments drawn-up by a notary.

It is worth emphasising that the category of ‘public documents’ employed by the civil law is much wider than the comparatively restrictive common law notion of public documents elaborated by the House of Lords in Sturla v Freccia.⁵ This width allows civil law systems to accommodate their frequently encountered policy of promoting non-contentious or preventive justice via, inter alia, authentic instruments. Thus, unlike the common law, the civil law does not require that public documents must relate to a matter of public concern, it is enough that the notary as an appointed public official may properly act as such to draw-up an authentic instrument concerning the juridical act in question; that this particular juridical act is of no immediate public interest does not debar the document in which it is declared from being classed as a ‘public document’ in civil law legal systems.⁶ Equally, and in contra-distinction to the requirements of the English common law, it is not deemed necessary by the civil law that ‘public documents’ should be open to public inspection: indeed such general public access is not allowed for notarial authentic instruments.⁷ Were this otherwise the privately held notarial protocols, in which the originals of all notarial authentic instruments are traditionally located, would have to be open to public inspection; it is not difficult to anticipate considerable difficulties with allowing public access rights to documents that, though in a public form, are privately held and contain very sensitive and confidential information concerning inter vivos and/or testamentary juridical acts relating to financial, property taxation and status arrangements.

As the civil law never grants a general right of public inspection concerning notarial authentic instruments, it may be wondered why the civil law classifies such authentic instruments as a type of public document. The answer to this question is connected to the involvement of a public officer or office in the ‘production’ of the authentic instrument as well as to the advantages for the State and the public of legal certainty and record keeping concerning the most important types of juridical act (as noted above): it also encompasses the public benefits of what the abovementioned civil law legal systems referred to as ‘preventive justice’.

The civil law concept of preventive justice is different and unrelated to the more recent common law-criminal law concept with which it incongruously and accidentally shares a name. The civil law concept of ‘preventive justice’ concerns civil law, not criminal law, and refers particularly to the non-contentious aspects of that law. In this sense preventive justice represents a systemic aspect of a civil law legal system that is designed to encourage the use of non-contentious legal devices, such as authentic instruments, to minimise the need and opportunity to turn unnecessarily to contentious proceedings. In such contexts ‘preventive justice’ refers to a ‘legal certainty preserving restriction of contentious/litigation possibilities’ that may be exemplified by the drawing-up of an authentic instrument.

A rough idea of the preventive justice function of an authentic instrument may be appreciated by considering a hypothetical sale and then transfer of land between ‘A’ and ‘B’ in a hypothetical civil law legal system featuring notarial authentic instruments. If the parties consult with a notary and then appear before him to conclude and record their transaction in a non-contentious authentic instrument it is likely that the notary will be able to establish at the point of drawing it up that ‘seller’ and ‘buyer’: a) are who they say they are; b) that each is of full age; c) that each appeared together with the other one before the notary at a given date and time to signify (by his signature) his understanding of and consent to the sale obligations and transfer obligations (as explained earlier to each by the notary) concerning the specific piece of land to be transferred from seller to buyer in return for the payment of a specific sum of money; and, d) that the required transfer and receipt of the payment in exchange for the sale and transfer obligations concerning the land occurred. The evidence on these points of verified fact exists as of the formal drawing-up of the authentic instrument and does so with the evidentiary advantages of a public document. It may thus be seen that the notarial authentic instrument not only provides a useful means of conveying relevant evidence to any land registry to complete the conveyance and registration, but also that it removes the need to litigate to establish any of the matters of evidence already established by the notarial authentic instrument. In one sense the authentic instrument prevents the need for such contentious legal proceedings and hence it is frequently said that if it is considered as a legal institution, ie as a distinct component of a legal system, the notarial authentic instrument exemplifies the highest level of preventive justice or its synonymous description as non-contentious practice.

Non-contentious practice refers to that part of the law and legal practice that determines or settles legal issues without recourse to litigation or other contentious legal proceedings. All legal systems feature aspects of non-contentious practice and hence all provide non-contentious legal procedures that allow factual and legal conclusions to be established without the need to artificially dispute or litigate in circumstances in which, despite there potentially being a difference of opinion between disputants, there is no real legal dispute. The simplest illustrations ...