"The more notary, the less judge"

With these words a famous jurist (Carnelutti) defined the essential function of the notary (that is, the most important activity that the law entrusts to the notary).

This means that the better the notary performs his or her job—that is, ascertaining and interpreting the intentions of the parties (i.e., the people) entering into a contract and drafting the relevant clauses in a lawful and clear manner—the less need there is for legal action (i.e., the lower the risk that the notarial deed will be the source of legal action). This is why the notary cannot receive documents expressly prohibited by law (Article 28 of the Notary Law) and is required to ascertain the identity of the parties (Article 49 of the Notary Law) and to personally ascertain their intentions (Article 47 of the Notary Law).

These are particularly stringent obligations, failure to comply with which entails, in addition to civil liability, disciplinary action against the notary (who may be suspended and, in the most serious cases, dismissed), and can give rise to criminal liability (for the crime of forgery of a public document). The notary is a public official appointed to receive deeds between living persons (i.e., sales, exchanges, divisions, mortgages, etc.) and last wills (i.e., wills), to grant them public trust, to preserve them, and to issue copies, certificates (i.e., summaries), and extracts (i.e., partial copies) (Article 1 of the Notary Law).

A deed drawn up by a notary is a public document because the notary is authorized to grant it public credence (hence, he is a public official). As such, it has a specific legal effect: what the notary certifies in the notarial deed (for example, that he read the document before the parties, or that a person made or signed a declaration before him) constitutes full proof (that is, it must be considered true, even by a judge), unless the crime of forgery is established.

The law requires a notarial deed for those deeds and contracts for which it seeks to guarantee to the maximum degree the legality, identity of the parties, and conformity to their will, because it considers them of greater importance: - for their economic-social content or complexity (e.g., sales, divisions, mortgages and other real estate contracts, deeds of incorporation of commercial companies and amendments to corporate bylaws, incorporations of associations seeking legal personality, etc.); - for the effects they produce in relation to a person's marital status (e.g., recognition of a natural child); - for the public interest in the free expression of a person's will and its precise translation into legal language (e.g., wills, donations).

A notary is a public official appointed to receive deeds between living persons (i.e., sales, exchanges, divisions, mortgages, etc.) and last wills (i.e., wills), to grant them public faith, to preserve them, and to issue copies, certificates (i.e., summaries), and extracts (i.e., partial copies) (Article 1 of the Notary Law).

A deed drawn up by a notary is a public document because the notary is authorized to attribute public faith to it (hence, he is a public official), and as such, it has a particular legal effect: what the notary attests in the notarial deed (e.g., that he read the document before the parties, or that a person made or signed a declaration before him) constitutes full proof (i.e., it must be considered true, even by a judge), unless the crime of forgery is proven.

The law requires a notarial deed for those deeds and contracts for which it wishes to guarantee to the maximum degree the legality, the identity of the parties and conformity with their will, because it considers them of greater importance:

• for their economic-social content or for their complexity (e.g.: sales, divisions, mortgages and other real estate contracts, deeds of incorporation of commercial companies and amendments to company bylaws, constitutions of associations intending to obtain legal personality, etc.);

• for the effects they produce in relation to a person's marital status (e.g., recognition of a natural child); for the public interest in the free expression of a person's will and its precise translation into legal language (e.g., will, donation).

The notary must be chosen by mutual agreement between the parties or, in the absence of agreement, by the party required to pay the fees and reimburse the expenses advanced by the notary.

In notarial deeds involving public bodies or banks, if they are not responsible for the cost of the notarial deed, it is standard practice to leave the choice of notary to the other party, unless there is a valid reason. The choice of notary should not be imposed by other professionals, real estate agents, brokers, etc.; they may recommend it only if the client so requests. The choice of notary should be based on a relationship of trust.

As a general rule, consideration should be given to: the time the notary personally dedicates to clients to ascertain their wishes and the practical purpose they intend to achieve; their ability to advise clients and guide them so that the form and content of the notarial deed best serve their interests, with a view to achieving the practical outcome they desire; the manner in which they practice their profession and comply with the law and the code of ethics; and, in particular, their integrity, diligence, and professional preparation, as well as the efficiency of their office's organization. The choice of notary should not be determined solely by the cost of the notarial service.

The notary fee is relatively rigid: the fee for drafting the notarial deed does not vary regardless of the notary chosen; however, the notary fees and expenses required for preparatory activities and for some subsequent formalities after the notarial deed may vary, but only modestly. Fees for consultancy and other professional services not strictly related to the notarial deed may also vary, even significantly.

When comparing costs, it's important to consider the way in which various notaries conduct their work, and in particular the time they dedicate to personal contact with clients. In any case, it's important to remember that, for professional services (especially in more complex cases), cost is not the best criterion for choosing.

By law, "the notary is only responsible for investigating the parties' intentions and personally directing the completion of the deed" (art. 47 of the Notarial Law).

The notary must investigate the will of the parties in a thorough and complete manner, through questions and the exchange of information aimed at also seeking the reasons and possible modifications of the will expressed to him (code of ethics approved by the National Notary Council on 24.2.1994).

Therefore, the relationship between the client and the notary generally begins before the signing and reading of the notarial deed, to allow the client to fully express his or her intentions and the notary to understand them. The notary is also responsible for personally guiding the parties in choosing the deeds and clauses that can be used to most fully achieve the parties' intended practical purpose, while also complying with mandatory legal provisions (i.e., provisions from which it is not possible to derogate).

The investigation of the parties' intentions can also be carried out upon receipt of the public deed or the authentication of the private deed.

The notary may avail himself of collaborators in dealing with the parties and is responsible for the actions of his collaborators, who always operate under his direction. In any case, the notary cannot delegate to others the task of determining the will of the parties, who always have the right to express their will to him personally.

Even when the deed is drawn up in accordance with a draft prepared by the parties, either one of them (e.g., a bank loan agreement) or by others (e.g., a power of attorney prepared by a car registration agency), the notary must explain the content and legal effects of the deed to the parties and ensure that they correspond to the intentions of all parties.

By law, a notary can never act in the interests of one party to the detriment of the other: he or she cannot therefore insert into a contract a clause that is burdensome for one party and advantageous for the other (e.g., a clause excluding warranties to which the seller is legally bound) without clearly and fully explaining its content and legal effects to the parties.

The notary should ensure with particular diligence that the meaning and effects of such clauses are understood and approved by the parties, whether they concern mortgages or other banking contracts and, in general, standardized contracts (i.e., drawn up on the basis of templates or forms prepared for an indefinite number of deeds) or concluded by consumers (persons who do not enter into the contract in the exercise of a business or profession, i.e., habitually).

The notary must refrain from exercising his duties when he finds himself or may find himself in a conflict of interest, direct or indirect, with the parties or with one of them.

The notary, in addition to having to ascertain the will of the parties and having to advise them on the contract or deed most suitable to achieve the practical result they propose, can carry out a consultancy activity through which he can also influence the will of the parties, directing it towards a practical result different from the one initially desired, if he deems it appropriate to better balance the interests at stake or avoid acts that are fraudulent to the law or whose effects are unclear to the parties.

In carrying out this activity, however, the notary must not limit or influence the parties' intentions; rather, he or she can only guide them in choosing the deed or deeds that best achieve a legal result corresponding to the practical purpose they freely and consciously desired. When the parties' purpose can be achieved in multiple ways, the notary must clearly and comprehensively explain the content and legal effects of the deeds that may be used to achieve it, and must inform the parties of the related tax and professional costs.

Furthermore, due to their specific knowledge of civil, commercial, and tax law, notaries can provide opinions (oral or written), especially regarding contracts, inheritance, companies, and taxes, even independently of the execution of a notarial deed. They can also act as arbitrators for disputes that may be subject to compromise (i.e., they can decide, like a private judge, disputes for which the parties do not turn to the judicial authority).

In providing tax consultancy, the notary has the duty to advise the parties to request, when the conditions exist, the application of the provisions providing for tax relief.

The notary has the duty not to recommend acts or proceedings intended to defraud the law or creditors, or aimed at evading or circumventing the application of tax laws; and must warn the parties of the risks and consequences that may arise.

Notarial deeds can be public deeds or authenticated private documents.

The public deed must be drawn up by a notary, while the private deed can also be drawn up by others (and specifically by anyone).

The notarial code of ethics establishes that even when the notary is called upon to authenticate a private document drawn up by others (that is, by the parties themselves or by professionals, or by other persons they trust), he or she must verify that the document complies with the law and corresponds to the true intentions of the parties, including by reading it before it is signed.

Therefore, the difference between a public deed and a private document certified by a notary has greatly diminished.

In practice the main differences are the following:

• the public deed must be drawn up by a notary; if it is not written personally by the notary, it must be read by him to the parties, who must all be present simultaneously before the notary; it must be written in Italian (possibly with a translation into a foreign language) and be signed by the parties and the notary at the same time; it must be kept (except in exceptional cases) in the notary's collection of documents, and is therefore subject to the supervision of the keeper of the notarial archive;

• A private deed need not be drawn up by a notary, it may not be read by the notary to the parties, and it may be authenticated by multiple notaries (each of whom certifies the authenticity of the signatures and the identity of the parties who signed the deed in his presence). Furthermore, the notary is not required to retain it, but may release the original to the parties. (For deeds subject to real estate or commercial disclosure, the code of ethics, however, establishes that the notary must also retain private deeds in his collection of documents, unless the parties have requested their return.)

The notarial deed must be clear and complete, so that the parties can understand its content and legal effects.

Therefore, when drafting a notarial deed, terms (i.e., words) and stylistic clauses that do not correspond to the parties' true intention or lack a precise legal meaning should be avoided. Furthermore, whenever possible, while respecting the precision of legal language, when choosing terms, preference should be given to those whose meaning is most immediately obvious to those unfamiliar with legal language.

In particular, when it concerns a sale of real estate or another real estate contract, the notarial deed must contain: the exact identification of the properties (through the cadastral description and the indication of non-generic boundaries).

It is also advisable to attach to the notarial deed extracts from cadastral maps or plans, and an indication of any rights that limit the enjoyment or availability of the property (e.g., easements, restrictions on building or use, mortgages, etc.). Public real estate deeds generally cannot contain clauses that exclude or limit the notary's duty to verify that the property in question is free of mortgages, foreclosures, or other encumbrances.

Such clauses could perhaps only be permitted in absolutely exceptional cases and for justified reasons.

The cost of the notarial deed includes both the fees and compensation for the notary's professional activity, as well as the amount of taxes, duties and expenses due for the notarial deed and for the activity that the notary must carry out by law before and after the stipulation of the notarial deed.

The fees due for the deed can be substantial, and the notary is obligated to pay them even if he hasn't received the relevant amount. Therefore, by law, the notary can refuse to accept the task of a notarial deed and to carry out his work if he hasn't received the due amount for taxes, expenses, and his salary before the deed.

If the client requests it, the notary must specify in detail in the invoice the expenses (taxes, fees, etc.) and the fees (fees, commissions, etc.) due for the notarial deed.

For consultancy services and other professional services not strictly related to the notarial deed, the notary is entitled to a fee that he or she may agree with the client or determine according to the general criteria established by the Notarial Council, including based on professional fees governing similar cases or matters.

When it is a public deed, the notary is required to read it in its entirety to the parties (in front of witnesses, if the deed is drawn up with the assistance of witnesses).

The reading of the deed must not be hasty or incomplete; and the obligation to read is not fulfilled properly when the parties are at such a distance from the notary that they cannot clearly hear the reading.

The parties may request a photocopy of the deed from the notary to facilitate its reading. For private deeds, the law does not require a reading; however, the notarial code of ethics requires that the deed be read before signing, to allow the notary to verify that the deed corresponds to the parties' intentions.

The notary's work does not end with the signing of the deed, but must also complete the formalities required by law or by mandate received from the parties. For some formalities (e.g., land registry entries, land register entries, and inheritance register entries), the notary is required by law to complete them promptly or within a short timeframe; for others (e.g., mortgage registrations), it is advisable for the notary to complete them as quickly as possible to avoid harm to the parties.

The notary guarantees that the notarial deed complies with the will of the parties, which he has ascertained and adapted to the mandatory provisions of law (i.e., the provisions of law that cannot be derogated by the will of the parties).

In fact, he is liable if the notarial deed is null and void because it is manifestly illicit or illegal; and he is also liable if the deed is annulled because one party lacked the legal capacity to perform it due to age or evident incapacity to understand or want, or in any case if it is annulled for another reason attributable to the notary.

For real estate deeds prepared by him on behalf of the parties, the notary, by practice (i.e., habitually), determines through examination of the public registers (real estate and land registry) whether, in the last twenty years, the properties have been subject to mortgages, foreclosures, seizures, easements, or other restrictions that limit their availability or enjoyment. He is liable for any damage suffered by the party who ignores these restrictions, rightfully trusting the notary's findings.

If you want the notary to conduct this examination for more than twenty years (e.g., to determine any easements) or to conduct inquiries at other offices (e.g., to verify the building's compliance with building regulations, zoning restrictions, etc.), you must assign a specific mandate to the notary, which must be accepted. In any case, if a property purchased through adverse possession not declared by a judge is sold, the notary cannot guarantee the buyer that the seller is the actual owner.

Nor can it guarantee that someone listed as the owner in the land registry or land registers, but who has not had possession of the property for more than twenty years, actually owns it (which could have been acquired by adverse possession, even if the adverse possession was not established by a court order). By law, the Notarial Council oversees the notary's strict compliance with his duties (including the obligation to compensate for damages for which he is responsible); and intervenes, upon request, to resolve disputes between the notary and his clients.

By resolution no. 2/56 of the National Council of Notaries of April 5, 2008, the text concerning the principles of professional ethics for notaries was approved, published in the Official Journal no. 177 of July 30, 2008.