What is a notary public?

Irrelevant, incompetent, or both?

Notaries public are a slight irrelevance in some jurisdictions and an essential part of making a will, or buying a house or setting up a company in others. But what is a notary public?

Well, some people think they’re a “notary”, but that’s just shorthand. Like an attorney at law is an attorney, though there are also attorneys in fact, which some like to call fancy things like “mandataries”. They’re agents, actually. In a recent translation for an “agent”, they came back with “where on earth did the word “public” come from?” in some hoity-toity manner, as if I didn’t know my arse from my elbow. I wrote back, very much aware of what my arse and elbow, respectively, are, that it’s actually the translation of “notaire” if he would care to just look in a dictionary instead of getting on his all-too-high horse. They come to the expert for expertise and then wonder why they don’t get a translation that looks like it was done by someone who don’t know nuffing about the subject, like.

In Holland, notaries are “civil law notaries”; I’m yet to see a “civil law notary” outside Holland and do actually wonder what a “criminal law notary” would look like. Dutch is a language that errs to telling the English how to speak theirs. Like the Flemish came up with “social profit” companies, using that English collocation as a Belgian-law term. I have to tell you, I scratched my head a few times at wondering how on Earth I would “translate” it; no one really understood what they were, least of all the French-speakers on the other side of Belgium’s linguistic divide. In the end, they translated it, as you might expect, into French. In English, that approach only works for restaurant menus. Did you know the Italian for the English phrase al fresco is all’aperto, because al fresco in Italian means dining whilst sitting in the fridge?

Notaries are an arm of government. Some people look on them as legal advisers, but they’re not. They will tell you if you’re about to break the law, but otherwise they will not advise you on the best way to obey the law. They set down in records what you tell them to set down in records—they say that in the records they set down—whereupon they say they told you what the law was and get you to listen to the whole thing read over as you quietly stir your complimentary cup of tea and then sign along with Us. Us for a single little notary public, and a capital U at that, like it was His Majesty himself who was granting you a royal charter. However, essentially, notaries public are keepers of records and collectors of taxes, not unlike your average VAT-registered business.

I find them a little outmoded, like I find royal decrees outmoded (since the king has no input and not even parliament gets that much of a look-in). They’re just secondary legislation, but sound as if they’re announced in market squares by a man on an orange box with a tricorn hat and a bell crying “Oyez, oyez, oyez.” The electronic age means there are more efficient means of collecting taxes than by having a local tax collector, and there’s not, in the end, that much difference between changing your registered address—which doesn’t need a notary and, for that matter, doesn’t even need the say-so of your stockholders—and choosing the first such address—which needs the say-so of both stockholders and a notary, and on which there are as good as no restrictions to start with.

A lot of their documents come to me for translation and there is never one that doesn’t have an error in it. N-e-v-e-r. Contradictory provisions in articles, blandly copy/pasted provisions from styles and models. Females referred to as “he” and French sex-equality-ists would go spare if they saw some of the male chauvinism that still prevails in the land of the notary. I once publicly issued a bounty of 1 million euros to the first notary or lawyer to send me a document for translation that used definitions clauses as they should be used, consistently throughout the document. I don’t actually have a million euros, but my money is as safe as a notarial act. As safe as safe-builders who offer a million if you can crack their safe safes.

Notaries used to be repositories of wills, but nowadays there are central registers of wills; company registration documents go off to the companies registration office. Solemn documentation? You can give testimony in court these days and there isn’t a Bible in sight. I’m not entirely sure that notaries are even meant to be there to stop you lying through your back teeth. If they are, it doesn’t work. So what do notaries do that no one else could do at half the price? Answers on a postcard, please.

A client law firm once asked me to get a translation legalised by a notary. So I asked—could he? He said “Yes,” and, for 12 euros, he legalised my signature, and all was well. We never met on that occasion, so I could have been Jack the Ripper for all he knew. But a legalisation is a legalisation—it’s by a notary, after all.

Some years later, another client wanted legalisation of my signature and an apostille. I asked if the same notary public could do that, and he said “Yes.” I asked if he was sure, and he said “Yes.” I asked if he was certain, and he said “Yes.” The Ministry of Foreign Affairs said “No.” And I know why.

Notaries cannot legalise anything in reference to a register held by the Ministry of Justice of which the notary hasn’t, and cannot have, any knowledge whatsoever. The apostille was refused, and quite rightly. The notary billed me 30 euros for the legalisation; a legalisation which he had absolutely no power or authority to do. What’s more, I never got to see him that second time either. He twice legalised my signature without even having seen me append it to the document or asking to see my ID card (I needed to offer it to his secretary on the second occasion).

I said that not only would I not pay the 30 euros, but he was lucky I didn’t refer the matter to the Chamber of Notaries in Brussels. He replied that, for future notarial work, I should seek out another notary. From the notary who’s done my will, bought my house, set up my private corporation … However, this was unnecessary advice on his part, for, I can assure you, I certainly will go elsewhere, and certainly did come the occasion. But - get this: I was blackballed by an officer of the state. Did you ever? A tax collector. Now, that is almost funny. He breaks the law and then blackballs me - as an arm of government - for threatening to shop him to his professional body. I do wonder, what are professional bodies there for? Christmas drinks?

There’s more. I once did a Moroccan notarial “act of repute” to establish a fact that’s not otherwise recorded - usually for testamentary purposes. In Morocco, these documents need 20 witnesses, which at the time I thought was a bit over the top. Many years later I did a similar document, this time from Luxembourg. The Luxembourg document had two witnesses, and they were both clerks in the notary’s office. Now, they could have actually known the fact they attested to, Luxembourg not being that big a place. But I think they perjured themselves. The Moroccans didn’t, for two reasons. It’s easier to get two Luxembourg notary’s clerks to perjure themselves and also cheaper than to get 20 Moroccans to do the same. And, the Moroccan approach is that, if a fact is “known by everyone”, then, surely 20 people must know it? Morocco’s lawmakers clearly never envisaged that a fact that’s known by everyone would not be known by 20 people and hence never considered that the requirement for 20 witnesses should ever pose a problem. It also speaks to the close-knit nature of Moroccan communities, as opposed to the stand-offishness of Luxembourg communities. And we call Morocco corrupt and Luxembourg saintly.

There’s yet more. Someone engaged me last month to help him in discussions with a local authority while doing a search on a property he’s agreed to buy but hasn’t yet had transferred into his name. A notary will do that, and the notary is supposed to do the search. The notary speaks Dutch, the buyer does not. The local authority was trenchant in its lack of cooperation, so the notary - instead of doing it himself - told the foreign client to do it on his own. I asked, “Is your notary not doing this?” and the client said, “No.” It was the same when I went to buy a house in another local authority area 20 years ago. I needed to go to the city archive because the archive would not answer the notary’s questions. It seems part of the property my client wants to buy has no plans and no planning permission. I said, “This is a problem.” But his notary public can’t help him, so I referred him to a lawyer I know, who gave some advice, while declining the brief. It’s complicated and it could be expensive, with two lots of stamp duty to pay for no transfer of the property. If an attorney had been doing the purchase, he could also go on and do the enquiries and settle the potential dispute. But the notary can’t. Because he’s a tax collector, not a legal adviser. And they don’t like to get off their very comfortable seats, either, which were after all handed down by their great-grandfathers, who were notaries before them in the 19th century. Notaries are a family business in many senses.

And there is yet even more. Another client just asked me to rubber-stamp as “sworn'“ a translation of articles prepared by their notary public. I refused, without even opening the notary’s “attempt”. I asked them to compare the two translations, mine done from the French, his done from the Collins-Robert dictionary or some machine on the Internet, and see what cosmetic “or even substantive” differences there might be between the two. I didn’t, I have to admit, even open the notary’s version - time is valuable and shouldn’t be wasted, and I didn’t want to unnecessarily up my blood pressure. I eat too much salt.

A copy-paste artist, like some kid cutting pictures out of magazines for a collage, sometimes without even realising what they represent. Fits the page, even if the edges are a bit ragged. And often far more pages than are necessary anyway: “We will obey the law and do things that the law says we must.” Makes you wonder what people would actually do if they didn’t say that in their articles of association, which often come down to, “We do what we want and no one can stop us.” Least of all a notary.

That is a notary public.