Civil Law Notary - Germany

Germany

In Germany, the main function of a Notar (pl. Notare, fem. Notarin) is to draw, execute, and retain legal instruments transacting or governing noncontentious matters in reserved areas of law:

• real property (conveyancing, servitudes, real securities)
• successions (wills and succession agreements, estate planning, executorships)
• family law (marital agreements, healthcare proxies, alimony & child support agreements)
• company law (formation, restructuring, registration, corporate minutes)

Prospective notaries must hold an undergraduate degree in general law—just like attorneys/solicitors—but also a graduate degree in notarial law. Then they must pass a competitive professional exam (notarielle Fachprüfung) to be admitted to practice. German civil-law notaries are appointed by authority of their state justice minister, draft notarial instruments (notarielle Urkunde) and retain them of record in their protocol (Urkundenrolle), and provide independent and impartial advice to all interested parties (Beteiligten).

The mode of practice depends on the state, but in all, 1,600 German notaries practice exclusively as a notary (Nur-Notar) versus 6,900 practicing dually as an attorney-notary (Anwaltsnotar). In most parts of Germany, notaries maintain independent private practices and do not generally work for the State except in Baden-Württemberg where 500 government notaries (Beamten-Notar) are regularly staffed in government agencies and offices. A notary's instruments are valid statewide, but in some states a notary's jurisdiction (Amtsbereich) is restricted to the judicial district (Amtsgerichtesbezirk) of the notary's appointment, as in Saxony and Württemberg where notaries are district notaries (Bezirksnotar). In Baden, notaries are magesterial notaries (Gerichternotar) who double as stipendiary magistrates. Single-practice notaries practice as a notary sole (Einzelnotar) or in a 2-person partnership (Zweier-Sozietät), whereas attorney-notaries structure themselves into law firms of varying size.

German notaries prepare instruments according to federal law and provide legal advice regarding contracts and obligations. A notary's statutory duties are:

• to satisfy himself of the identity of the appearers (Urkundsparteien);
• to verify the parties to contracts are competent to enter into them;
• Belehrungspflicht: to rigorously explain to appearers the contents and legal implications of the instrument; and
• to have the appearers sign before and with the notary and sometimes in the presence of witnesses.

The notary affixes his official seal (Dienstsiegel) to the instrument and binds it by annexure (Verbindung, Heftung). If the instrument is prima facie duly executed, courts will enforce it, presume it valid and regular, and admit it as evidence to prove the truth of its contents.

In Germany, notaries are very important in day-to-day business. For example, any real estate sales contract (§ 311(b), German Civil Code), articles of association, alimony or child support agreement, or contract concerning succession (pactum successorium) must be in notarial form. Likewise, any share purchase or asset transfer agreement of a private limited company (GmbH) must be notarially executed pursuant to s. 15(3) of the Private Limited Companies Act (GmbHG). Contracts requiring notarial execution can be drafted by the executing notary, the parties, or by an attorney/solicitor.