Notarial practice, drafting and authentication
Notarial practice, drafting and authentication
This domain tests the making of authentic instruments: competence, formalities, drafting discipline and the evidentiary and enforcement effects of the deed. It is the practical heart of the exam.
The authentic act
- The notary is a public officer; the act must be received within his or her competence and with the required solemnities.
- The authentic act is full proof of its contents and constitutes a titre exécutoire.
- The original (minute) stays in the notary's minutes; expéditions and copies are issued.
- Electronic notarial acts are possible under the e-notariat framework.
Drafting
- Identify parties, capacity, matrimonial regime, powers of attorney and beneficial owners.
- State the title, precise description, price, payment terms, guarantees and conditions.
- Verify cadastre, mortgage state, urbanism, pre-emption rights and any prior charges.
- Mention the reading and the parties' declarations.
Worked example
A deed omits the purchaser's matrimonial regime. The sale is not automatically void, but if the property is community property the spouse's consent may be missing, exposing the notary to liability and the buyer to a claim. Correct drafting identifies the regime, names the spouse, and records consent or the applicable power.
Traps
Do not confuse nullity with irregularity: a missing formality can be cured or lead to damages, not always annulment. Do not use a private deed where the law requires an authentic act, and never omit the reading.