Acts which a notary may not receive

Abstract

This thesis discusses article 12 of the Notarial Profession and Notarial Archives Act (Chapter 55 of the Laws of Malta). This article is based on article 28 of the Italian Ordinamento del Notariato e Degli Archivi Notarili (enacted on the 16 th of February 1913). Chapter 1 - This chapter deals with a brief history of how Notarial Law originated and whether the notary is a member of a liberal profession in addition to his being a public officer. Principles such as independence, impartiality and equidistance which are considered to be essential in the notary's activity are examined. Chapter 2 - A distinction in this chapter is made between null, annulable and inexistent acts. Different views and interpretations have been proposed throughout the years and article 12 is put within such a context. Chapter 3 - This chapter discusses the different views discussed by text-writers and caselaw regarding the applicability of article 12. Particular attention is given to the phrase "acts expressly prohibited by law". An analysis of the concepts of good morals and public policy shows that a precise and unambiguous defmition is difficult to find and that this article requires amendment because the notary is in a difficult position.Chapter 4 - Paragraphs (b) and ( c) of article12 were discussed in this chapter. These two sub-articles deal with the notary's duty to abstain from receiving acts if the parties are related to the notary by consanguinity or affinity in the degrees mentioned therein or if the act contains provisions which concern him or any of his said relatives. The fundamental principle of impartiality characterizing the notarial profession is the reason for such a provision of the law. Reference is also made to the principles laid down in these paragraphs with reference to the Civil Code provisions regarding public and secret wills. Chapter 5 - This chapter examines disciplinary punishments referred to in article 128 of Notarial Law. Article 128 deals with disciplinary punishments to which notaries are liable for any breach of duty. It considers whether the notary has the duty to conduct searches. The different views elaborated both by text-writers and case-law are examined. Chapter 6 - It was concluded that article 12 of Chapter 55 is an ambiguous article due to bad drafting which leaves ample space for different kinds of interpretation. For this reason it cries out for amendments in order to facilitate the notary's role and to save the notary from entering into complex and unnecessary interpretations before deciding whether it is lawful for him to receive an act or not. It is proposed that article 12 should be amended to include a clear and exhaustive list of all those acts which a notary is prohibited from receiving. This would relieve the notary of responsibility since there are hefty sanctions if it is proved that he violated article 12.