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"The more notary, the less judge"
That means the better notaries do their job – by verifying and interpreting the signatories intention in entering into an agreement and drawing up clauses thereof in compliance with the law - the less likelihood to go to Court (i.e. the less risk that disputes mat arise out of a notarial deed). That is also the main reason why notaries do not give their consent to draft deeds expressly forbidden by the law (Section 28 of the Notarial Law), are required to be provided with sufficient evidence of the signatories identity (Section 49 of the Notarial Law) and are entitled to personally investigate on the signatories will (Section 47 of the Notarial Law).
Such duties are particularly strict, and their non-observance entails for notaries, besides any liability for damage, their liability to disciplinary action (they may be temporarily banned from their practice or in the worst case scenario definitively removed from practice) as well as their criminal liability (accused of forging documents).
Notaries are public office holders authorized to draw up inter vivos deeds (i.e. sales, exchanges, divisions of property, mortgages, etc.) and mortis causa deeds (i.e. last will and testaments), conferring them authenticity, keeping them and issuing authentic copies thereof or certificates (i.e. summaries) and extracts.
A deed drawn up by a notary acquires the status of a public deed in that notaries are authorized to confer authenticity to them (being public office holders). As such they are endowed with greater legal force: statements made in a notarial deed (e.g. that the deed has been read to the signatories, or that a person made or signed an affidavit in their presence) acquire probative value (are deemed true, even by a judge), unless contested as false statements.
Notaries - in addition to having to enquire the signatories intention and to provide advice on the most appropriate contract or instrument to achieve their practical goals - can play a key advisory role through which the signatories may be redirected towards practical goals different from the ones initially set, should notaries deem it appropriate to better strike the appropriate balance among all interests at stake or to avoid deeds prohibited by the law or whose effects would not be enough clear to signatories. In conducting such advisory role, however, notaries must not limit or negatively affect the signatories intent; rather advise on the deed or deeds through which better achieving the practical goals underneath the legal results which the signatories freely and wittingly wish for. When the signatories goal can be achieved in several ways, notaries must clearly and thoroughly explain them content and effects of each of those deeds suitable to achieve their goal, and must inform them about taxes and professional fees related thereto. Because of their in depth knowledge of civil, commercial and tax law, notaries may as well provide opinions (oral or written), especially with reference to contracts, succession upon death, corporate matters and tax issues, regardless any execution of a deed, and may act as arbitrators for disputes subject to a settlement (i.e. deciding, as amicable settlement magistrates, upon disputes parties have decided not brought to Court).
Notaries, in providing tax advice, have a duty to recommend their clients to opt, when some requirements are met, for the application of provisions granting tax benefits.
Notaries have the duty not to recommend deeds or proceedings which may evade the law or entail fraud against creditors or tax fraud, and must warn clients of any risks and consequences arising from them.
Notarial deeds can be drafted as public-form instruments or private-form instruments.
Public-form instruments are an exclusive competence of notaries while private-form instruments may be drafted by anybody (namely by anyone). The Code of Ethics states that when a notary is asked to authenticate a private-form document finalized by others (i.e. by the signatories themselves or by professionals or other trustworthy persons) he/she must check that the document complies with the law and is in line with the true intention of the parties, even through its reading before it is executed. The difference between public-form instruments an private-form certified instruments is therefore minimal.
In practice, the main differences are the following:
- Public-form instruments must be drawn up by notaries, and whether such instruments are not made by a draftsman notary, they shall be read to the signatories, who must all be present simultaneously before their notary; they must be drafted in Italian (if it needs be they are drafted in a foreign language along with the relevant Italian translation) and be signed by the signatories and their notary all at once; they must be retained (except for exceptional cases) in the notary’s collection, and they are therefore subject to any control activity by the keeper of notarial archives.
- Private-form instruments may not be drawn up by a notary, may not be read by the notary to the signatories and may even be authenticated by more than one notary (each of them conferring authenticity to signatures and expressing the correct identity of signatories executing the instrument before them). In addition, notaries have no obligation to retain them, they may issue the single original to the signatories. (For instruments subject to commercial or real estate disclosure duties, the Code of Ethics states, however, that notaries must retain them in their collection, should the signatories have not requested their issuance thereafter).
By resolution of the National Council of Notaries no. 2/56 of April 5, 2008 a Code on notaries professional ethics principles was approved and published in the Official Gazette no. 177 of July 30, 2008.
