German Civil Law Notaries
Within the German system of “preventive justice” the civil law notaries’ function is complementary to the role of a judge. The intervention of a notary is required by law in cases of important transactions with long-term effects and a particular economic or personal significance for the parties concerned. Such cases are, among others, the sale of land, the establishment of a mortgage, the incorporation of a limited liability company (GmbH) or a public limited company (Aktiengesellschaft), certain corporate share deals or asset deals and matrimonial property agreements.
Approximately 7,000 legal practitioners work as civil law notaries in Germany today. They are state-appointed officials providing independent, impartial and objective advice for important legal transactions.
In roughly two thirds of the country civil law notaries practise as single-profession civil law notaries. In the other areas, civil law notaries exercise the profession as an additional office alongside with their activity as attorneys.
However, the same professional rules apply to all civil law notaries. Procedural provisions, ethics and fees of the civil law notaries are governed by federal law and are therefore the same all over Germany.
Preventive Justice – independent and concealed
German civil law notaries play a key role in real estate law, the law of mortgages, the law of contracts, corporate law as well as family and succession law.
Civil law notaries act as independent, impartial and objective advisers to all parties to a transaction. They examine the intentions of the parties, draft the contracts and instruments necessary to carry out the intended transaction and ensure that the contractual provisions are in full compliance with the law. Civil law notaries also verify that the parties have full (mental and legal) capacity to enter into the intended agreement and that they have fully understood the legal implications of their commitment. Otherwise, the civil law notary is required by law to refuse his participation. The idea underlying this system is to establish a preventive legal control in order to avoid costly and time-consuming litigation about the validity and the meaning of contractual provisions in the aftermath of a transaction.
Apart from the legal certainty and correctness, a transaction in the form of an authentic instrument offers additional advantages to the parties. By law, authentic instruments are vested with an increased value of evidence and with so-called immediate enforceability. This means that an authentic instrument establishes full proof of the fact that the persons mentioned in the heading of the document have accepted the commitments undertaken therein with the content stated therein. Furthermore, the debtor of a claim for money can declare in an authentic instrument a so-called “submission to immediate enforcement into his assets”. In this case, the creditor can seize and exploit the assets of the debtor without filing a lawsuit. In fact, the authentic instrument established by a notary is comparable to an enforceable court judgment.