A brief glossary of terms used by Notaries
As with any profession, the world of the Notary is full of terms and phrases which are commonplace within it, but which are never used and rarely understood outside it. I hope that it might be helpful for me to explain a few of them. This is only a short list of some usual examples. Please do email me if you have heard from your overseas lawyers with others which are unclear to you - I shall reply to you with an explanation and also include them in future blogs.
Notarise / Add your stamp
These are often the expressions used at a first meeting with a Notary. A prospective client might call me to say that their lawyer abroad needs the paperwork to be taken to a Notary in England for me to “notarise it “ or to “add my stamp”.
Sometimes the client is under the impression that a Notary will stamp any piece of paper whatever is written on it - and that the process should therefore take a minute or so, if that - and the fees should reflect a complete lack of care over a very short time! In fact there is no way that I or any Notary will add a Notarial stamp to a document just because it is put under my nose. If Notaries behaved like that there would be no point in the procedure.
The Notary’s seal of Office (the “stamp”) is not in fact a procedure in itself –the stamp is merely applied to identify the Notary who has made it. It is the certificate which is relied upon abroad, not the stamp. That is to say, I need to write on the paper exactly what truth I am warranting. To do this, I need to investigate the truth, even if it is nothing more than to identify you as the person who has signed a document.
Certify
As explained above, I will not add my stamp to paper unless I am making a certificate – that is, explaining in writing what I am saying about the paper.
Imagine an example - you have a particular qualification – an exam pass, a University degree, a registration as a Doctor with the British Medical Council – and you are applying for a post abroad. Your new prospective employers will want to know that your qualification is genuine and may ask you to get the degree or other certificate “certified” by a Notary.
If you come to me for my stamp to be added, I have explained above that I will not do so without at least taking evidence of your identity. But if I merely stamp it and you then send it off to your new employers, what will they understand my stamp to mean? It might mean only that I have seen you and checked who you are (and so have no idea whether your degree is in fact genuine). It might mean, I have seen you and contacted your university and checked that the degree certificate is genuine. So clearly, I need to set out in writing exactly what my certificate is saying.
I might write “This paper was produced to me today by AB whose identity s/he has proved to me and I have NOT verified that this paper is genuine”. This will be adequate, if the future employer is going to check for themselves with your University – as would be the case with most hospitals abroad in respect of applicants for medical positions. but it would obviously be useless if the employer is relying on me to tell them whether you have a degree. Then I would have to make the necessary checks and write “This paper was produced to me today by AB whose identity s/he has proved to me and I have today verified with the issuing University that this paper is genuine”.
The fact is that a Notary’s “Certification” is not one fixed thing. It is very important to quiz the foreign jurisdiction who say to you “get a Notary to certify your papers” and find out from them EXACTLY what they mean.
Do I have to check they are true or just identify you? Do they require me place my certificate upon the original papers? – which can be very worrying for you if they are irreplaceable – or is it allowed to make the required certificate upon photocopies?
Please remember that when you are told that you need my Certificate, you are being asked for something very specific even though the language used may be extremely vague. The party abroad might mean any one of an almost unlimited number of things and I, as the Notary in England, need to be told of their exact requirements. Since it would be a waste of money to obtain the wrong certificate, it is very important to know what exactly is needed, before we start. Accordingly if you are not certain what is needed you might choose to put me in touch direct with the Foreign Lawyers before our meeting. Whilst this would add to my fees, the expense of preparing an inadequate document and later needing to start all over again would be far greater.
Acknowledge/Witness
Often a foreign lawyer will send a document to England with the requirement that it should be witnessed before a Notary. The word “witness” is generally understood in England – if a Policeman asks for witnesses it would be unusual for someone to come forward to say that although he did not see the incident, he would like to be a witness. We understand – to witness something is to see it happen. Yet plain English seems to vanish time and time again, when the word “witness” is used in connection with a foreign document. I have lost count of the times that I see a client who wants me to witness his paper – but when we meet he produces it already signed by himself (and often by his partner also who has not even attended the meeting) and asks me to sign as witness!
If I do not see you sign, I cannot witness you sign. Of course this is obvious when it is spelt out but nevertheless this is a point which is very often missed in the urgency of meeting deadlines.
Very occasionally, the foreign lawyer requires the document to be “acknowledged” by a Notary and not “witnessed” at all. In this case, instead of writing “Signed in my Presence today by AB” I can write “The signature above was today acknowledged to me by AB” – or sometimes the acknowledgement to me might be by another person who was witness to the original signing.
Many North American States (USA) will admit this procedure, but most other countries of the world will not.
Legalise/Further Legalise/Authenticate
Once I have made my certificate, even then the job is not necessarily over. For many countries, nothing further is required. These include Australia and most of the States of the USA and Canada and the Caribbean countries.
The rest of the world is rather more cautious and it seems to me, with good reason. In this day and age identity theft and fraud is increasing. No doubt there are some criminals capable of preparing a document which looks impressively stamped and sealed - so the difficulty for recipients thousands of miles is to distinguish the document which is really sealed by a Notary from one which is not.
Accordingly, most countries need to see evidence on the document that the Notary is genuine. This is what your foreign lawyers mean, if they ask you to ensure that I get the papers “Legalised” or ”Authenticated”
Apostille/Obtain the Consular Stamp
Before 1961, this further step of legalisation/authentication was dealt with by sending the paper to the Consular office in England of the Country concerned. There must be hundreds of Consular Offices in England. Each has a different address, a different fee (ranging at present from about £3.00 to £400.00 or more for each document), different time scales (a day or so, to several weeks) and different procedures (send a stamped envelope, send a postal order but not a cheque, attend in person at the counter etc). Each one of these Consulates of course can only certify that the paper had been issued me, a Notary, if they have previously recorded full details of my qualification and my signature and seal and updated them regularly. The Consular legalisation system can be a major chore for the Notary, requiring annual registration with all the Consulates, and it is a headache for the Consulates themselves; they must keep details of all of the Notaries, and deal with all the postal and personal attendances for Consular stamps.
Accordingly the International Conference of the Hague in 1961 took place in order to set up a procedure by which different Countries could elect to abandon the Consular authentication procedure and use the system of the “Apostille”. This means that where say a document for Spain was signed in another Country (“C”) then the Notary in C should send the paper not to the Spanish Consulate in C, but to the Foreign Office of C. So, if you sign any document for use in Spain before me in England, I no longer need to send it on to the Spanish Consulate. Instead I send it for the Apostille stamp to the British Foreign Office.
If every country in the world signed up to the Hague convention, an English Notary would only need to register with the Foreign Office for all authentication.
Life is not so accommodating of course, and therefore at present the requirements of different counties may be any one of
• No further legalisation – including USA, Canada, Caribbean (except the Dominican Republic)
• Consular Legalisation – including Brazil
• Apostille / Foreign Office Legalisation – including most of Europe and Asia
• Both of them! Foreign Office and then Consular legalisation – including China, UAE, Turkey, Dominican Republic
In addition some countries will require that my Certificate should be interpreted by a qualified interpreter before submission for further legalisation
Notary Certificate in Public Form/in Private form
These alternative types of document are European in origin – particularly they are found in Spain. In Spain there is no direct equivalent of the English document called a “Deed”.
An English Deed is made in accordance with the Statutory definitions of a Deed. It must be Signed and Delivered as a Deed and the signature must be by an adult of sufficient mental capacity and in the presence of another adult as witness, who then countersigns. The significance of a Deed is that it is binding on the person who signs it even if no consideration (money or moneys-worth) has been received. This would not be true of a signed promise made without any witness and given for no consideration .
The two documents – the Public form and the Private form - used in Spain do not have the same distinction with relation to consideration. The physical difference lies in the lay out – a private form document follows the style of an English Deed or contract whilst a Public form deed is written in the form of a Proclamation by the Notary. In respect of the latter because it is the Notary’s documented record of what took place and is also a statement of the legal implications of the document, the liability of the Notary is extended beyond the scope of the private form.
In respect of the private form the English Notary may often be warranting nothing more than the identity of the signatory. In the Public Form he is responsible for all aspects of the document and its consequences both for the signatory and for all who rely upon it.