The responsibility of the public registry : tort or contract?

Abstract

In recent years, there has been a constant debate regarding the responsibility of the Notary Public. Amendments were made to the Notarial Profession and Notarial Archives Act and the Public Registry Act to legally enforce this responsibility. This term paper assumes that the Notary Public has carried out his work diligently, but there has been a mistake in the searches provided by the Public Registry. The first part of this Paper examines the possible mistakes and/or omissions that may be made by the Public Registry officials. So far, no Court cases have ever been brought against the Public Registry. If a case crops up, one needs to determine whether the responsibility of the Public Registry is contractual or tortious. The distinction is important for various reasons: for example, different prescriptive periods apply. Thus, this Paper also examines whether the application for searches constitutes a contract of sale or supply of services. In this case, the relationship is between the Public Registry and the Notary. The third party, who may have suffered the damages, does not enter into the equation. One may argue there is no official contract signed between the Notary and the Public Registry because there are no terms and conditions. If one does not accept the concept that it is a contract, then this Paper examines the possibility that the Director of the Public Registry may be held responsible for damages, because of tortious liability. In this situation, the client would sue the Notary and then it is up to the Notary to sue the Public Registry or else, both of them may sue the Public Registry. Throughout this Paper, suggestions are made as to how the modus operandi of the Public Registry may be improved and what amendments may be made to relevant legislation.