Poland is a member of Union Internacional del Notariado Latino.
Below please find the fundamental principles of the latin notarial system
NOTARIES AND THEIR FUNCTION
Notaries are professional lawyers and public officials appointed by the State to confer authenticity on legal deeds and contracts contained in documents drafted by them and to advise persons who call upon their services. According to Polish law all information and counsels provided by the notaries are free of charge.
Notarial services encompass all judicial activities in non-contentious matters, affording legal certainty to clients, thus averting disputes and litigation.
When notarised deeds are drawn up, notaries are obliged to have constant regard for the law in interpreting the wishes of the parties concerned and ensuring that they conform to the law. They have to verify the identities of the parties involved, as well as their status and authority to conclude the particular deed or transaction in question. They monitor its legality, whilst at the same time ensuring that the intentions of the parties stated in their presence are freely expressed, irrespective of the medium used for the notarised deed.
Notaries have sole responsibility for their own draftsmanship. They are free to accept or reject any proposal submitted to them and to make any amendments that they deem suitable by agreement with the parties.
Parties to a notarised deed are entitled to copies of the original kept by the Notary. Authenticated copies have the same standing as an original. Notaries can issue ordinary copies to persons who, under national law, have a legitimate interest in ascertaining their content.
Notarised deeds enjoy the benefit of dual presumption of legality and accuracy of content; they may be contested only through judicial channels. They are enforceable instruments with conclusive force.
Notarised deeds that meet the aforementioned standards should be recognised in all States and should have the same conclusive force, be enforceable in the same way and create the same rights and obligations as in their country of origin.
Notaries must be members of a collegiate body. A single organisation consisting exclusively of Notaries represents the whole body of Notaries in every country.
The law in each State determines the qualifications needed and the conditions governing access to the profession of Notary, establishing the examinations, tests and training periods deemed necessary.
The law of each State determines the disciplinary code that applies to Notaries, who are to be under the constant supervision of their public authorities and collegiate bodies.
Owing to the public nature of the office they hold, notaries have a duty to act in good faith and with integrity towards those who request their services, the State and their colleagues.
To achieve the balance needed in order to conclude a contract on an equal footing, a Notary's impartiality can also take the form of lending adequate assistance to whichever of the parties might be in a position of inferiority.
Choice of Notary is a matter for the parties alone.
Notaries are bound by the ethical rules of their profession at both national and international level.
The fundamental characteristic of the « Latin » notary, who passes on the legacy of the profession, is that of being a jurist and not merely a certifier, who helps avert legal proceedings, by making negotiations safer and cheaper and thus helping to avoid disputes effectively.
LITTLE BIT OF HISTORY
The profession of notary draws its origins from the Roman tabelliones and the more ancient scribes in the Ancient Egyptian civilisation.
The tabelliones appeared between the second and third century AD. They were a class of professionals who were present wherever required for legal business, had their own technique and whose task, according to the jurist Ulpianus (3rd century A.D.) was: “instrumenta formare, libellos concipere, testationes consignare”.
The gradual development of the profession of notary in Ancient Rome was fostered by the influence of other peoples which Romehad absorbed in its Empire and who gradually became its citizens. The peoples of the East, in particular, made a major use of written documents, which a notarial office, sometimes of a public nature, was responsible for. These notarial documents had a very high value as they either established rights or had a probative force.
The tabelliones worked at the archives or the forum, opening offices known as stationes. Following the edict of Antonius Pius acknowledging their right to a salarium, they started insisting on fees which Diocletian set in the edictum dei pretiis.
In the next evolution, the notarii, became secretaries to the authorities, and the Emperor first and foremost. As of the 4th century, the notarii in the imperial service were organised in a Schola, one of the most important of the palace, reaching a very high rank and fulfilling important duties.
Justinian introduced new regulations for the Corpus iuris, aimed at giving a systematic organisation to the profession of tabellio and the form and effectiveness of documents. The notary was required to read out the document to the parties and ask them if it corresponded to their will. The parties then signed the document, which the notary had the duty to deliver to them. This document was seen as having higher probative force than private deeds.
With Charlemagne, the instruments drafted by notaries acquired the same force and effect as a conclusive judgment. Between the 11th and 12th century, the profession of notary became a noble one and the ars notaria became a valid instrument of juridical unification. In this period, the eminent Rolandino da Passaggeri (Bologna, 1234-1300) rose to the fore. Rolandino may be taken as an example of that civil and political commitment that many expressed during the Middle Ages. He is considered the greatest author of civil law. His Summa artis notariae, written in around 1255, continued to be used as a basic text for notaries throughout Europeuntil the 17th century.
Throughout the Renaissance the profession of notary left an indelible mark on culture and civilisation. When Christopher Columbus discovered America, he took a notary (“escribano”) with him to certify the truth of what he saw and take possession of the land. Since then, the profession of notary has spread across South and Central America, the Caribbean, all the way to Mexicoand French-speaking Canada.
In France, Philip the Handsome (14th century) extended their duties and jurisdiction. In 1539 what would become the organisation of the profession of notary was already prefigured: deeds have to be written in French, preserved and record of their existence noted in a registry.
At the end of the French Revolution, the need is felt to attribute further importance to the role of the notary in society. With the Law of the 25th of Ventôse of the year XI (16th March 1803), Napoleon Bonaparte gave the institution of notary an organisation which, despite a few changes, is still up-to-date and modern and serves as a basis for all the other notarial laws worldwide.
In spite of the profound changes and adaptation to the various national legal systems, the substantial strength of this law has allowed it to overcome time as well as social, political and economic changes.
THE SIGNIFICANCE OF NOTARY
Greater security and lower costs
The greater security and lower costs of the Roman-Germanic legal system have favoured its expansion and today we find this system in 80 countries, covering 60% of the world population and 80% of the population in Europe.
The notarial function: inexpensive and efficient
The notary is a contract professional. He advises the parties, understands their will, adapts the act to the law, draws up and authenticates the document.
The fee of the notary includes the total cost of the service (emoluments, staff, office, etc.) and is fixed by public authorities. It accounts for a small proportion of the total cost of an act, which generally includes public taxes and duties.
The notary can only practise within the area assigned to him by law, but may draft and authenticate acts relating to persons or property regardless of the place where they reside or are situated in. He is required to offer his assistance and cannot refuse to do so, unless there is a just cause.
Owing to its quality and within the framework of the required public document, the service of advice offered by the notary is free of charge. The advice of the notary is not limited to the client who requested his services. He has the duty to be impartial, to see to the equity of contracts, to achieve the proper balance between the parties and guarantee that the act complies with the law in force.
The latter, fundamental quality of the notarial act contributes significantly to reducing post-contractual disputes, which instead are very numerous in Common Law countries, such as the United States, where the overall cost of justice amounts to 2.5% of GDP (while in civil law countries it ranges between 0.5% of GDP in Japan and 1.4% in Belgium).
The service of a notary is worth more than its cost
Owing to the particular features of the public service assigned to notaries, it has always been held more convenient for citizens to have the fees of notaries fixed by government bodies. A system of free-market rates would lead to a deterioration of the quality of the service, thereby disrupting the system based on public confidence and harming legal certainty. It follows that, in almost all countries, notaries are remunerated according to rates fixed by national governments.
Favourable costs/results ratio
In the notary’s office, the signature of the act by the parties is only the last part of a very long complex, meticulous and delicate job. It has been shown that the cost of the service rendered by a notary is far lower than the social damage that is avoided thanks to the notary. Resorting to a notary is virtually the only means that modest social classes have to obtain, at a cost fixed in advance, a service of advice that includes the formalisation of negotiations, the quality of which is by no means lower than that of the service provided to the wealthier classes.