The latin notary and the notary public
I have been asked to explain the difference between the Latin notary, on the one hand, and the notary public of the United States and English Canada, on the other hand.
Legal education
Notaries in Quebec receive a full legal education and article before being admitted to the profession, while notaries public are not subject to any prerequisite other than being persons of good reputation with basic educations. As such, the notary public is not a professional but strictly a commissioned clerk.
Legal counselling or advice
Legal counselling is an essential part of the Latin notary's function, while the notary public is neither permitted nor competent to give legal advice.
Lifetime vs short-term appointment
The Latin notary is licensed for life and may be suspended for ethical reasons only. The American notary public's commission expires with time.
Certification authority
The notary public has the power to certify, but his certification has limited probative effect.
The Latin notary is not obliged to testify before a court of justice with respect to notarial instruments unless their authenticity is challenged. Notarial deeds are proof in themselves, prima facie.
In the United States, a notarial seal means that certification is presumed to be authentic and clear, and convincing evidence must be brought to rebut certification. However, this presumption covers only the acknowledgement and genuineness of signature.
The fundamental difference between the two certifications resides in the fact that the notary public's certificate is not deemed to certify or guarantee the facts stated in the document to which it is attached. The notary public's certificate cannot override the hearsay rule; this justifies the exclusion of documents certified by a notary public from in-court testimony.
Fundamental difference between civil law and common law
The last distinction between the powers of certification of the Latin notary and the notary public calls for a few words on the essential philosophical approaches of the civil law and common law systems.
Until recently, the common law was a non-codified set of rules of law issued from the corpus of court decisions. In English tradition, judges pronounce the law and the judiciary adapts the law to cope with evolving society. In such a system, courts are the preeminent agents of law-making and the courtroom is where cases of law must be dealt with; thus the greatest value is given to court testimony.
Another element of this system, an almost complete absence of formalism in contracting, finds its source in the high moralistic values of a puritan society where one's word and a handshake were to be honoured in virtually all instances. Take, for example, the following typically Anglo-Saxon expressions: fair play, gentlemen's agreement, etc.
The civil law approach is found in societies with more secular philosophical values and is predisposed toward the value of writing. For civil law lawyers, testimonial evidence is "seen as temporary and susceptible to many subjective factors that might affect its value. Documentary evidence on the other hand is perceived as more objective and more reliable because it is contemporaneous with the act or accord amongst the parties and because it is prepared prior to the inception of litigation," not to mention the weaknesses of human beings, memory being an example.
In the civil law system, the written word is paramount in judicial proceedings, and the notarial document has been singled out for its particular probative value.