About notaries

The Notary - your impartial expert advisor

The tasks and activities of a notary are varied: On the one hand, the notary represents the state. He or she holds a public office granted by the State and in this capacity he or she is a bearer of public authority. For citizens seeking justice, this is symbolically expressed by the fact that the notary uses an official sign with the state's coat of arms. For you as the notary's client, however, a different aspect comes to the fore: The notary is available to you and your contractual partners primarily as an impartial expert in complex and consequential legal matters.

What does this mean? Notaries provide assistance in shaping legal relationships and act as mediators between the parties’ interests. Notaries are thus "peace-making" legal practitioners. Unlike lawyers, they are not representatives of one party only, but independent and unprejudiced advisors to all parties involved. It is not the task of notaries to decide disputes and other matters in an authoritarian manner either. In this respect, notaries differ from judges as well. Notaries merely offer advice and assistance as a service to those involved. The parties are free to accept the notary's advice, or not.

When the notary is called upon by the parties involved, he or she will first of all investigate the facts of the matter in question, and in doing so, will determine the interests and objectives of the parties to the contract in the most accurate manner. However, not everything the parties involved wish to do can be done, and not everything they want to do may be done. It is the task of the notary to find out the intentions of the parties involved, and to lead them to achieve the result that corresponds to their true will, without error, doubt or legal uncertainty. On the basis thus determined, the notary will work towards an agreement between the contracting parties in the sense of a voluntary reconciliation of interests. If such an agreement cannot be reached, the notary's activities will come to an end.

If, however, an agreement is reached, the result is usually put down in a contract, whether it be called a purchase contract, an inheritance contract, articles of association or something else. Notaries then advise and instruct the parties on the (possible) content of the contract, ensuring that inexperienced parties do not find themselves at a disadvantage. The aim here is to achieve a balance between the contracting parties, insofar as this depends on legal information and knowledge of legal options. Notaries thus make a significant contribution to ensuring effective consumer protection.

The notary - placed at your side by the legislative authority

Notaries make an important contribution to the smooth functioning of our community. A notary is knowledgeable, independent and neutral. Even after decades, his or her deeds provide irrefutable proof of the agreements concluded. Payment claims arising from notarial deeds may be enforced immediately. The authorities responsible for the state registers (commercial register, land register and register of associations), too, rely on the accuracy of notarial deeds when making their entries. In addition to their high evidential value, notarial deeds also have an alert function: Citizens are to be protected from the consequences of hasty actions by means of specific formal requirements before taking important decisions, such as buying a house.

Therefore, for a large number of legal transactions, the notary’s intervention (more precisely, the certification of the legal transaction by a notary) is required by law. This is always the case where the legislative authorities consider the notary's assistance to be necessary because of the far-reaching personal and economic consequences for those involved. 

The participation of the notary is necessary or at least highly recommended in the following areas in particular:

• Real estate (purchase, donation, usufruct, creation of mortgages and land charges, etc.)
• Marriage, partnership and family (marriage contract, divorce and partner contract, adoption)
• Inheritance and donation (will and contract of inheritance, application for certificate of inheritance, distribution of real estate, anticipated succession, deed of gift, etc.)
• Companies (establishment or transformation of a company, application for registration of a company in the commercial register, etc.)
• Advance directive (Health Care Power of Attorney, Living Will)
• Dispute avoidance, arbitration, mediation (divorce agreement, estate settlement dispute, enforceable deeds, mediation and arbitration, etc.)

Notaries are primarily responsible for all kinds of deeds and for the certification of signatures, hand signs and copies. Marriage contracts, inheritance and real estate contracts are to be certified by notaries. Notaries record assembly decisions, perform raffles and draws, and create asset lists. They may also conduct voluntary auctions and mediate the settlement of estates and joint estates. In addition, notaries may give advice and represent in matters of voluntary jurisdiction, act as arbitrators, take oaths, issue certificates and hold securities and valuables in safekeeping.

In accordance with his or her public duty and function for the community, the notary may not refuse to perform his or her duties without sufficient reason; he or she must therefore be available to any person seeking legal assistance with his or her notarisation services.

The notary must maintain confidentiality with regard to all matters that become known to him or her in the course of his or her professional activity; confidentiality must also be kept by the persons employed by him or her. Therefore, it is possible to discuss confidential matters with the notary in complete frankness.

The notary works at his or her own risk: He or she is liable with all his or her assets for damages he or she causes. Every notary has to take an oath of conscientious conduct of office. The responsible president of the district court regularly verifies compliance with all relevant laws and regulations, right up to the correct settlement of costs and fees with clients. The supervisory authorities have the power of imposing disciplinary measures on notaries. In the case of particularly blatant violations of official duties the notary may even be removed from office.

If a breach of public duties occurs after all, the notary must compensate for the resulting damage. He or she must take out liability insurance for such cases. In addition, the chambers of notaries have taken out so-called group follow-up insurance policies and set up a fidelity fund for even better protection of the parties involved.

(C) Federal Chamber of Notaries