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Notary Public Defined The Eritrean Notary Public in the Context of Global Notaries System Contents 1. Global Overview of the Notaries System By Habtemicael Weldegiorgis, Cadastral Office, Eritrea 2. The Eritrean Notary Public 3. Professional Ethics 4. Reflections FIG International Conference 2014 5. Concluding Remarks ‘Engaging the Challenges, Enhancing the Relevance’ Kuala Lumpur, Malaysia, 16 – 21 June 2014 XXV International Federation of Surveyors Congress, Kuala Lumpur, Malaysia, 16 – Brief Geography & History • Eritrea: located in NE Africa/ Horn of Africa • Area: 124,320 km² , Population: 4 million • Bounded by the Sudan in the west and NW, Ethiopia in the south, Djibouti in the SE, and the Red Sea in the east • Administratively, divided into six zones • Occupation by Ottoman Turks(1557-1857) followed by the Egyptian rule • Italian colonialism (1890-1941) followed by British occupation (1941-52), federation with Ethiopia (1952 -1962) & Ethiopian rule until 1991 • 30 years War of Liberation (1961-1991) • 1993 formal independence with 99.8% of the people voting for independence XXV International XXV International Federation of Surveyors Federation of Surveyors Congress, Kuala Congress, Kuala Lumpur, Malaysia, 16 – Lumpur, Malaysia, 16 – 1. Global Overview of the Notaries 1.1 Historical Development System Notary Public defined • ‘Notary’, ‘notarial officer’, or ‘public notary’ has a long history that traces to the Fertile • Notary Public is an officer authorized by Crescent of ancient Babylon & Greek city state law to certify certain documents and to states & later adopted under the Roman take oaths (World Book Encyclopedia, Empire 1994) •‘Notary Public’ in common law countries is • The origin of the notary is also found in a public officer constituted by law to serve Hammurabi’s Code in 2000 BC, & in the public in non-contentious matters ancient Greece in 360 BC concerned with estates, deeds, powers of attorney, & foreign & international business’ • Initially, the ‘notary’ or, ‘notarius’ wrote • ‘Whereas in civil-law or latin notaries, they statements in shorthand in the form of are lawyers of voluntary private civil-law minutes offices who draft, take, & record legal instruments known as notarial acts or deeds for private parties, provide legal advice & • Later, ‘notarius’ applied to registrars give attendance in person, & are vested as attached to courts of provincial governors & public officers with the authentication power other government bodies on behalf of the XXVstate’ International (Wikipedia, 2011) XXV International Federation of Surveyors Federation of Surveyors Congress, Kuala Congress, Kuala Lumpur, Malaysia, 16 – Lumpur, Malaysia, 16 – Cont’d Cont’d • The notary continued in many parts of • We now find ‘notaire’ in French, ‘notaio’ in Continental Europe despite the collapse Italian, ‘notario publico’ in Spanish & of Western Empire in the 5 th AD ‘notarius’ in the Netherland, etc • The Civil Law revived its renaissance • In England a common law, free from most during medieval Italy from 12 th C & the influences of the Roman Law developed in notary established as central institution of the 13 th & 14 th C that law Duties and functions: • The development of modern ‘notariat’ ‘A notary public…whose public office and happened with the opening of school of duty it is to draw, attest or certify under his ‘notariato’ in Bologna (1228) that official seal deeds and other documents, influenced Europe including wills or other testamentary • Notarial Acts: in France (1270), Portugal documents, conveyances of real and (1315), Spain (1333) & in Germany a personal property and powers of attorney: modified latin type notary (‘natar’) to authenticate such documents under his signature & official seal in such a manner as to render them acceptable, as proof of XXV International the matters attestedXXV International by him,…’ Federation of Surveyors Federation of Surveyors Congress, Kuala Congress, Kuala Lumpur, Malaysia, 16 – Lumpur, Malaysia, 16 – 1.2 Notarial Requirements & Practices Cont’d • The purpose of notarization is to protect • Appointing bodies for notaries vary from those who use them from forgeries country to country: in UK & Canada by Court of Faculties, in USA by Governor or State Secretary or by State Legislature, in • Thus, the ‘notary signs the document to Australia by Supreme Court, in New certify that the individual who signed it Zealand (& Queensland, Australia) by appeared in person and swore to the notary Archbishop of Canterbury acting through that the signature on the document is the Master of Faculties, & in India by the genuine’ Central Government • In the US & Canada: lay notaries, limited to • Appointing bodies in civil-law notaries: in domestic affairs, briefer period, unlimited France, the Ministry of Justice, Germany, number the state, Netherlands, the Crown, Eritrea, • Lay notaries are not lawyers, but take the Judiciary, etc relevant courses to carryout their duties • Both the civil law & common law notaries restricted to the administration of oaths, agree that many documents - deeds, witnessing signatures on affidavits & businesses, etc. must be notarized before statutory declaration, certify true copies, becoming legally effective provide acknowledgements, etc XXV International XXV International Federation of Surveyors Federation of Surveyors Congress, Kuala Congress, Kuala Lumpur, Malaysia, 16 – Lumpur, Malaysia, 16 – Cont’d • In England & Wales they are common law notaries & qualified lawyers • In France, Germany & many other EU countries (34), Russia, Turkey, China, Japan, Latin American (23) & many other • Civil-law notaries, or Latin Notaries countries the civil-law notaries are judges whose main practices are property & lawyers conveyance and registration, contract drafting, commercial transactions, successions and other estate related • In France group liability for professional matters are lawyers of private law and errors are paid from nation-wide unlike lay notaries public provide legal consolidated fund, which is unknown in advice and prepare instruments with legal any other profession effect • Notaries in many EU countries are modeled on the French system, appointment based on nationality, limited number, usually for life, & are qualified lawyers XXV International XXV International Federation of Surveyors Federation of Surveyors Congress, Kuala Congress, Kuala Lumpur, Malaysia, 16 – Lumpur, Malaysia, 16 – 2. The Eritrean Notary Public Cont’d 2.1 Background: • During the Ethiopian Military rule (1970s) all • Notary public was established at the end of extra houses were confiscated, owners lost 19 th C during Italian colonialism security of property ownership, & registration of private houses was discouraged as bourgeoisie practice • At the beginning the colonial power authorized the Governor to appoint them • The relevance of both Notary and Cadastre • Later it was instituted according Italian law offices was questioned, however, narrowly of 1935 & continued with minor survived as institutions amendments of proclamation of 1952 • The Eritrean Notary Act(1956): specified method of appointment, number of notaries • Post December1995 Notary restructured to be licensed, criteria for nomination, under Central Region Administration- in withdrawal of license, etc other regions not yet re-constituted • Mandate: preparation & authentication of • Transfer of property through purchase contract agreement in the transactions of becoming insecure in other regions immovable propertyXXV International XXV International Federation of Surveyors Federation of Surveyors Congress, Kuala Congress, Kuala Lumpur, Malaysia, 16 – Lumpur, Malaysia, 16 – 2.2 Current Role 3. Professional Ethics The main functions of the Eritrean Notary Public: All notaries have to ensure that documents are genuine & legally effective • Preparations of contract agreements of immovable property transactions through sale, inheritance, donation, exchange, Principles or codes of professional conduct: partition & wills • Serve the public in an honest, fair & • Charges appropriate fees for services unbiased manner rendered • Act as an impartial witness and not for profit • Land is state-owned and not subject for • Require the presence of each signer and sale or any other form of transactions oath-taker • Not execute a false or incomplete 2.3 Immovable Property Registration certificate • The Cadastral Office registers all land, • Give precedence to the rules of law rights over land, immovable property & their transactions, mortgage, pledge, etc. XXV International XXV International Federation of Surveyors Federation of Surveyors Congress, Kuala Congress, Kuala Lumpur, Malaysia, 16 – Lumpur, Malaysia, 16 – Cont’d 4. Reflections • Need for notaries has grown with the internationalization of market & business • Act as a ministerial officer • Documents related to deeds, contracts, businesses & • Not allow notarial symbol to be used by others need to be notarized to be legally effective another • Thus, legal security remains more important today • Record notarial act in a bound journal or than ever before other secure recording device • Eritrean notary need to embrace other notarial services beyond contract agreement of property • Respect the privacy of each signer/only transfer official purpose • Different experiences in dealing with notaries • Seek instruction on notarization, & keep (appointment & duties) depending on history, political, current on laws, practices & requirements & socio-economic conditions of the country • Reinstate notaries in all administrative
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