The traceability of notarial acts : moving towards an electronic notarial archive

Abstract

The Notarial Archive is commonly referred to as the ‘mother of all archives’. This stems from the fact that between the bindings of the volumes found at such archives, one can find a true representation of society throughout history. All the people, irrespective of their stratum in society, have paid a visit to the Notary at some point in their life. The private lives of such individuals have been recorded through Notarial acts which in turn have been stored at the Notarial Archives. The Archive acts like a time-travelling machine; it allows a person to take a look through a window which opens on a lived moment particular in time. As held by Dr. Joan Abela “what we have here is the voice of the people”. Albeit, this paper treasure is a victim to the passage of time. With each second that passes these notarial records diminish in quality and legibility. The Vulnerability of the archives together with the concept of the ‘digital revolution’ has led several Notaries to consider the introduction of an Electronic Notarial Archive in Malta. It is clearly evident in this day and age that technology is the basis of all life. Notably in 2016 the International Congress of Notaries promoted national development towards the use of information technology. Likewise, notarial services should also move from the conventional paper based system towards an electronic system. Having an electronic archive will substantially reduce the paper-load and also create a real-time archiving system. Just like the scrolls from the Roman Times were substituted with paper the future holds that paper will be substituted with electronic documents. Despite the fact that paper remains the primary medium through which notarial acts are drawn up and stored, the future holds the possibility of a paperless electronic archive. Notarial deeds constitute vital primary sources of considerable relevance for the social history of Malta. It follows, that a study of the Notarial Profession in relation to the archiving system, constitutes a relevant area of study deserving full recognition. In light of the above, the scope of this dissertation shall be to shed light on the current position of the Notary and the Notarial Archives with the aim of proposing a paperless electronic archive that will provide the solution to all the procedural archival inefficiencies, if any. This will entail a more elaborate understanding of the position of the Notary as a National Archivist and by discussing the Crux of the Notarial Archives. Whilst delving into the present procedure in order to acquire a notarial Deed or Will. This study will move on to introduce the concept of an electronic archive within the Maltese Islands. This study will take a comparative approach with the Austrian Cyberdoc which is an electronic archive which has been implemented for over 15 years. This comparative study will contribute as a guidance to introducing such electronic archive within Malta by clearly depicting the steps that were taken by Austria. What is the position of the Notary as an Archivist and what is the position of the Notarial Archives at present? Does the present procedure to acquire a notarial act have inefficiencies? Would an electronic archive solve such inefficiencies? How will an electric archive be implemented? These are issues which will be dealt in this research and the approach taken to achieve these answers will be described in the following paragraphs dedicated to the methodology. The nature of the research and the lack of previous academic analysis from the perspective advanced in this study has required a reliance on the ‘black-letter’ method. This methodology was the most adequate since this study required a legal database. This qualitative study was possible thanks to the laws of Malta and Austrian literature as primary sources, and books, journals and articles as secondary sources whose purpose was that of supplementing information extracted from the primary sources. This research also involved a visit to the notarial archives in order to examine the notarial archives and its current system. A comparative study on a small scale was also carried out by analysing the current Notarial Archiving system of Malta concurrently with the Notarial Archiving system of Austria – the Cyberdoc. This will help the reader identify any inefficiencies, if any, in our system and whether an electronic archive will solve them. Material on the Cyberdoc system was collected by communication with Austrian Notaries as well as the Austrian Chamber of Notaries.