What are the notary’s duties?
The notary must act in accordance with his duties as aministerial officer. They are therefore subject to various obligations which, if not complied with, may give rise to liability. This liability is governed primarily by the rules of ordinary tort law. To ensure that your notary is held liable, you should contact a lawyer. He will advise you on the steps to take before the competent courts.
The notary has a duty to advise, including :
- An obligation to inform,
- An obligation to warn.
As one of his main functions is to draw up authentic instruments that are binding on his clients, he has a duty to inform them about the nature, scope and consequences of their instruments, particularly tax instruments, regardless of the client’s level of knowledge and skill. This may involve, for example, settling the estate of a deceased person.
The notary also has a duty to warn of any omissions or negligence.
In addition, notaries must ensure the validity and effectiveness of their instruments and inform their clients of the requirements for their validity. This duty includes an obligation to instrument. This corresponds to the impossibility of refusing to perform an act for which their intervention is necessary and gives the parties the right to expect an act that corresponds as closely as possible to the aim they are pursuing.
They must also respect their duty of professional secrecy.
If the notary’s misconduct is proven, the loss directly caused may be compensated. In order for a notary to be held liable, he must :
- Failure to comply with one of his obligations,
- Demonstration of a causal link between the alleged loss and the breach of one of the notary’s duties.
Our lawyers are familiar with the steps to be taken to engage the professional civil liability of a notary, so please do not hesitate to contact us.
What evidence is needed to hold a notary liable?
The burden of proving a notary’s fault lies with the defendant notary. The onus is on the defendant notary to prove that there was no breach, which may be done by any means.
The notary may be exonerated from liability:
- In the event of force majeure,
- If it was probably impossible for him to be aware of the information or risk.
The notary is not liable to third parties but only to all parties to the deed, even those who did not contact him.
If the notary is held liable, the Chamber of Notaries will take up his defence. Similarly, compensation is not paid directly by the notary, but by his professional liability insurance or, if this does not apply, by the guarantee fund.
The Goldwin firm and its lawyers will support you throughout the procedure and help you to hold your notary liable.
Finally, since the reform of the statute of limitations, the limitation period for bringing an action for liability, whether in contract or tort, is five years from the day on which the holder of the right knew or should have known of the facts.
