The notary must act in accordance with his duties as a ministerial officer. Therefore, he is subject to various obligations which, if not respected, are likely to lead to his liability, which is mainly subject to the rules of common law of tort liability.
The notary has a duty to advise, including an obligation to inform and warn. As one of his main functions is to draw up authentic acts that are binding on his clients, he has a duty to inform them of the nature, scope and consequences of their acts, particularly in relation to tax matters, regardless of the client’s level of knowledge and competence.
Furthermore, he is bound by a duty to warn against possible omissions or negligence.
Furthermore, the notary must ensure the validity and effectiveness of his acts and inform his clients of the requirements for their validity. This duty includes an obligation to instrument, i.e. the impossibility of refusing to perform an act for which their intervention is necessary and entitles the parties to expect an act that corresponds as closely as possible to the purpose they are pursuing.
He is also bound by his duty of professional secrecy.
Any damage directly caused by the notary’s fault may be compensated if proven.
Indeed, in the event of failure to comply with one of his obligations and the demonstration of a causal link between the alleged prejudice and the failure to comply with one of his duties, his liability will be engaged.
The burden of proof of the notary’s fault lies with the defendant notary, who must prove that he did not fail to comply with his obligations, which may be done by any means.
He may be exempted from liability in the event of force majeure or if it was probably impossible for him to know the information or risk.
The notary is not liable to third parties but only to all parties to the act, including those who did not contact him.
When his liability is engaged, his defense is taken in charge by the Chamber of Notaries. Likewise, compensation is not paid directly by the notary but by the professional liability insurance or, if it does not apply, by the guarantee fund.
Since the reform of the statute of limitations, the statute of limitations to act in liability, both contractual and tortious, is five years from the day when the holder of the right had knowledge or should have had knowledge of the facts.sabilité du notaire, c’est quoi ?