Function and regulation of the notarial profession : a comparative study

Abstract

The purpose of this thesis is to provide a comparative outlook on the function and regulation of the notarial profession, the reason being the special position occupied by members of the profession in countries whose legal systems are derived from Roman law. Part of the uniqueness of the notary's position in such countries emerges from the fact that a notary is a publicly appointed, albeit independent, professional person, with a state-protected monopoly over certain non-litigation functions defined by law. The legal significance of his office stems principally from the strong probative and executive force accorded to notarial acts. Instruments in public form received by a notary enjoy an enhanced evidentiary status in most civil law jurisdictions (including Malta). The notary is the only and proper person to attest such instruments, and no proof is necessary to prove public deeds except his attestation and the faith the law places on such an officer universally acknowledged and credited by the law of nations. They are acts which every notary swears at the time of his admission to office to draw up faithfully and in accordance with the formalities prescribed by law. The aim of a comparative study of this kind is twofold: (i) to promote a better and more critical appreciation of the characteristics of Maltese notarial law, and (ii) to provide the essential keys to the understanding of the notarial laws with which comparison is made, in an endeavour to draw together the various legal rules impinging upon notaries in civil law and common law countries and, in particular, to highlight the distinction between the office of the Anglo-American notary and the more significant office of his professional counterpart in continental Europe. The need to keep a proper balance between the different topics considered and to keep the thesis to a reasonable length have to be borne in mind.