1. Because of its structure, American law is a member of the Common law family. The English and Americans have the same general concept of law and its role; the principal legal divisions and concepts and the conception of the legal rule are the same in each country. Categories such as Common law, Equity, torts, bailment and trusts belong naturally in each system. For both law is thought of as essentially judge-made; legislative rules, no matter how numerous, are viewed with some discomfort because they are not the normal expression of the legal rule. They are only truly assimilated into the American legal system once they have been judicially interpreted and applied and when it is possible to refer to the court decisions applying them rather to the legislative texts themselves.
In the United States, a federal state, the respective attributions of the federal and state authorities is a matter of primary importance. What are the respective areas of jurisdiction of the American Congress and federal authorities and the individual state legislatures and their administrative authorities? Amendment X to the American Constitution, enacted in 1791, is as specific and unambiguous as possible on this matter: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." This principle has never been abandoned and the legislative competence vested in the states is, therefore, the rule, whereas the legislative competence of the federal authorities is the exception and must always be based on a specific text of the Constitution itself. There are, therefore, between the laws of the various states, many and often very important differences arising under their respective statutory rules and judicial interpretations. Court and administrative structures vary from one state to another and so do civil and criminal procedure.
According to the Model Notary Act (2010) every applicant for a notary commission shall take, within the 3 months preceding application, a course of instruction of at least 4 hours approved by the (commissioning official), and pass a written examination of this course. The content of the course and the basis for the written examination shall be notarial laws, procedures, and ethics. The Powers of the Notary are: 1) acknowledgments; 2) oaths and affirmation; 3) jurats; 4) signature witnessings; 5) copy certifications; 6) verifications of fact; and 7) any other acts so authorized by the law of this (state).
A notary shall perform a notarial act only if the principal: a) is in the presence of the notary at the time of notarization; b) is personally know to the notary or identified by the notary through satisfactory evidence; c) appears to understand the nature of the transaction requiring a notarial act; d) appears to be acting of his or her own free will; e) signs using letters or characters of a language that is understood by the notary; and f) communicates directly with the notary in a language both understand.
A notary shall not refuse to perform a notarial act based on a person's race, advanced age, gender, sexual orientation, religion, national origin, disability, or status as a non-client or non-customer of the notary's employer. A notary shall perform any notarial act described in Section 5-1 of this Chapter for any person requesting such an act who tenders the appropriate fee specified Section 6-2(a), unless: 1) the notary knows or has a reasonable belief that the notarial act or the associated transaction is unlawful; 2) the act is prohibited; 3) the number or timing of the requested notarial act or acts practicably precludes completion at the time of the request, in which case the notary shall arrange for later completion of the requested act or acts without unreasonable delay; or 4) in the case of a request to perform an electronic notarial act, the notary is not registered to notarize electronically.
A notary may but is not required to perform a notarial act outside of the notary's regular workplace or business hours. In notarizing a paper document, a notary public shall affix an official signature on the notarial certificate at the time the notarial act is performed.
In notarizing a paper document, a notary public shall affix an official seal on the notarial certificate at the time the notarial act is performed.
In notarizing a paper document, a notary public shall affix an official seal on the notarial certificate at the time the notarial act is performed. The official seal of notary public shall not be used for any purpose other than performing lawful notarizations. The official seal shall: 1) be the exclusive property of the notary; 2) not be affixed by any other person; 3) be kept secure and accessible only to the notary; and 4) not be surrendered to an employer upon termination of employment.
"Electronic notary public" and "electronic notary" mean a notary public who has registered with the (commissioning official) the capability to perform
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electronic notarial acts. "Electronic notarial certificate" means the part of, or attachment to, a notarized electronic document that, in the performance of an electronic notarization, is completed by the electronic notary public, bears the notary's registered electronic signature and seal, and states the date, venue, and facts attested to or certified by the notary in the particular electronic notarization. "Electronic notary seal" mean information within a notarized electronic document that includes the electronic notary's name, title, jurisdiction, and commission expiration date. "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with an electronic document and executed or adopted by a person with the intent to sign the document.
The following notarial acts may be performed electronically: 1) acknowledgment; 2) jurat; 3) signature witnessing; 4) copy certification; and 5) verification of fact. An electronic notary public shall perform an electronic notarization only if the principal: 1) is in the presence of the notary at the time of notarization; 2) is personally know to the notary or identified by the notary thought satisfactory evidence; 3) appears to understand the nature of the transaction; 4) appears to be acting of his or her own free will; 5) communicates directly with the notary in a language both understand; and 6) reasonably establishes the electronic signature as his or her own.
A proper electronic notarial certificate shall contain: 1) completed wording appropriate to the particular electronic notarial act; 2) a registered electronic signature; and 3) a registered electronic notary seal, which shall include: a) the name of the electronic notary fully and exactly as it is spelled on the notary's commissioning document; b) the jurisdiction that commissioned and registered the electronic notary; c) the title "Electronic Notary Public"; d) the commission or registration number of the electronic notary; and e) the commission expiration date of the electronic notary. The wording of an electronic notarial certificate shall be in a form that: 1) is set forth in Chapter 9 of this (Act); 2) is otherwise prescribed by the law of this (State); 3) is prescribed by a law, regulation, or custom of another jurisdiction, provided it does not require actions by the electronic notary that are unauthorized by this (State); or 4) describes the actions of the electronic notary in such a manner as to meet the requirements of the particular notarial act. A notarial certificate shall be worded and completed using only letters, characters, and a language that are read, and understood by electronic notary.
2.1 Canada, situated in northern North America, is the second largest country in the world. It is administrated by a federal system of government, whereby the authority to make and administer laws is constitutionally divided between the federal government and the governments of ten provinces and three territories. Canada's legal system largely reflects the English and French traditions brought by settlers in the 17[th] and 18[th] centuries. The mixed legal system of Canada is highlighted by the importance of the English common law tradition in most of the country, and the Civil Code of Quebec, which is modeled on the French Code Napoléon. The rights and traditions of Aboriginal peoples are also reflected in Canadian law. Upon Canada's founding in 1867, the British North America Act (now know as the Constitution Act, 1967) divided governmental powers between the federal parliament and provincial legislatures. The federal government has jurisdiction over matters such as defence, navigation and shipping, banking, criminal law and the regulation of trade and commerce. The provincial governments have exclusive powers to make laws on matters such as education, property and civil rights, solemnization of marriage, and generally all matters of a merely local or private nature within the province. Matters that are not specifically enumerated within provincial jurisdiction are deemed to fall within federal jurisdiction.
In 1982, Canada's Constitution was revised, principally by transferring from Britain to Canada the power to amend Canada's Constitution, and by incorporating the Canadian Charter of Rights and Freedoms into Canadian constitutional law. The Charter guarantees certain fundamental rights and freedoms, including freedom of conscience and religion; freedom of thought, opinion, and expression; legal rights; and equality rights. The passage of the Charter signaled a major change in the role of the judiciary in Canada, which became vested with the power of interpreting the Charter and determining whether federal and provincial legislation conformed to Charter principles. The 1982 constitutional revision also specifically recognized Aboriginal treaty rights.
2.2 According to the Notaries Act of British Columbia (1996) Canadian citizen or permanent resident of Canada may, on payment of the prescribed fee, apply to the court under the Supreme Court Civil Rules for enrollment as a member of the Society of Notaries Public. An application for enrollment as a member must be filed in the Vancouver registry heard at Vancouver. At least 30 days before the hearing of an application for enrollment as a member a copy of the application must be served on the secretary of the society and on the executive director of the Law Society of British Columbia. At least 30 days before the hearing of an application for enrollment
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as a member a notice of the application and the date of the hearing must be published in a manner determined by the society.
A person may oppose the application at the hearing, if the person serves notice of the person's opposition on the applicant and files a copy of the notice with the registrar. If the court is satisfied that an applicant is a fit person for enrollment as a member, it may order that the applicant be examined in the duties of a notary public and, if found qualified on the examination, be enrolled as a member. The Attorney general must appoint a board of examiners consisting of 3 persons to conduct the examinations of applicants for enrollment. If an applicant files proof with the registrar that the applicant has satisfactorily passed the required examination and has taken an oath of office in the prescribed form before a judge of the court, and pays the prescribed fee, the registrar must enroll the applicant as a member.
The registrar must keep a roll called the Roll of Notaries Public. If the court orders or if the registrar is notified by secretary of the termination of membership of a member, the registrar must strike the member from the roll. If a member is stuck off the roll, the vacancy may be filled by a person enrolled under section 6. On request and on payment of the prescribed fee, the registrar must issue to a person empowered to act as a notary public by the Act a commission in the prescribed form. A person who is a member of the society may use the style and title of Notary Public in and for the Province of British Columbia and is a notary public.
The rights and powers of notary publics are: 1) draw instruments relating to property which are intended, permitted or required to be registered, recorded filed in a registry or other public office, contracts, charter parties and other mercantile instruments in British Columbia; 2) draw and supervise the execution of wills; 3) by which the testator directs the testator's estate to be distributes immediately on death; 4) that provide that if the beneficiaries named in the will predecease the testator, there is a gift over to alternative beneficiaries vesting immediately on the death of the testator, or 5) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority; 6)attest or protest all commercial or other instruments brought before the member for attestation or public protestation; 7) draw affidavits, affirmations or statutory declarations that may or are required to be administered, sworn, affirmed or made by the law of British Columbia, another province of Canada, Canada or another country; 8) administer oaths; 9)draw instruments for the purposes of the Representation Agreement Act; 10) draw instruments relating to health care for the purposes of making advance directives, as defined in the Health Care (Consent) and Care Facility (Admission) Act; 11) draw instruments for the purposes of the Power of Attorney Act; 12) perform the duties authorized by an Act.
A member who is not in good standing must not act or hold himself or herself out as entitled to act as a notary public, or act in any other capacity that derives from the member's status as a notary public. The directors of the Society may at any time order and provide for the audit of the books and accounts of a member or former member. If the audit shows that the books and accounts are not in proper order and kept up to date, the directors may require that the cost of the audit be paid to the society by the member or former member. If an audit discloses that there has been a contravention of that Act or the regulations or rules relating to accounts, the directors may immediately suspend the member from practicing and direct an inquiry.
2.3 In Nova Scotia a person may be a notary public, a commissioner of oaths, or both. A notary public and a commissioner of oaths are regulated by the provincial Notaries and Commissioners Act. Individuals hold a commission granted to them by the Minister of Justice. Under the Act a notary public has the "power of drawing, passing, keeping and issuing all deeds and contracts, charter-parties and other mercantile transactions in this Province, and also of attesting all commercial instruments brought before him for public protestation, and otherwise of acting as is usual in the office of notary, and many demand, receive and have all the rights, profits and emoluments rightfully appertaining and belonging to the said calling of notary during pleasure.
Under the Act a commissioner of oaths is "authorized to administer oaths and take and receive affidavits, declarations and affirmations within the Province in and concerning any cause, matter or thing, depending or to be had in the Supreme Court, or any other court in the Province." Every barrister of the Supreme Court of Nova Scotia is a commissioner of oaths but must receive an additional commission to act as a notary public.
"A Commissioner of Oaths is deemed to be an officer of the Supreme Court of Nova Scotia. Commissioners take declarations concerning any matter to come before a court in the Province." Additionally, individuals with other specific qualifications, such as being a current Member of the Legislative Assembly, commissioned officer of the Royal Canadian Mounted Police or Canadian Forces make act as if explicitly being a Commissioner of Oaths.
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2.4 In Quebec there are no notaries public, only civil-law (notaries). As full lawyers licensed to practice notarial law, they perform functions that far exceed the simple document-assistant role of British Columbian notaries public. Quebec notaries draft and prepare major legal instruments (notarial act), provide complex legal advice, represent clients (out of court) and make appearances on their behalf, act as arbitrator, mediator, or conciliator, and even act as a court commissioner in non-contentious matters. To become a notary in Quebec, a candidate must hold a Bachelor's degree in civil law and a one-year Master's in notarial law and serve a traineeship (stage) before being admitted to practice.
3. Australia, officially knows as the Commonwealth of Australia, has a legal system that for historical reasons belongs to the family of the Common Law. In colonial times the applications of English law was regarded as self-evident. Even nowadays many decision of the Australian courts contains, at times elaborate, references to English precedent. Technically English law no longer constitutes a binding source of law, though. The formal judicial emancipation of the Australian courts became complete with the enactment of the Australian Act 1986. That statute formally abolishes a right of appeal in Australian cases to the Privy Council in London.
Gradually a local version of the common law is developing in present-day Australia, one that is adapted to that country's own characteristics and customs of its people. At times this evolution has been a matter of necessity. An example taken from the law of contract is disputes about the sales of land: they features much more prominently in Australian than in English litigation. This feature of Australian society inevitably has an impact upon the common law of contract even if it may prove to be a slow process for now. In other areas of private law Australian courts have displayed less reluctance to go their own way. The tort of negligence is a case in point.
Australia has a federal system of government and this is reflected in the legal make-up of the country. Six separate states, originally known as colonies, predate the formation of the Commonwealth of Australia in 1901. They are, in chronological order, New South Wales (1788), Tasmania (1803), Queensland (1824), Western Australia (1829), South Australia (1836) and Victoria (1851). Each state traditionally has its own constitution and lawmaking bodies. Federation did not really alter this state of affairs. In addition, there are ten territories, but these are subject to the Commonwealth's lawmaking powers.
Under the Public Notaries Act (2001) in all Australian States and Territories (expect Queensland) notaries public are appointed by the Supreme Court of the relevant State or Territory. As a general rule, an applicant [for appointment as a notary] should be a legal practitioner of several years standing at least. Even a cursory perusal of texts on the duties and functions of a public notary demonstrates that a number of those functions and duties require at the very least a sound working knowledge of Australian law and commercial practice. In other words, the preparation of a notarial act plainly requires a sound knowledge of law and practice in Australia especially of the due preparation and execution of commercial and contractual instruments. It is essential that notaries in this State have a sufficient level of training, qualification and status to enable them efficiently and effectively to discharge the functions of the office.
Their principal duties include: 1) attestation of documents and certification of their due execution for use in Australia and internationally; 2) preparation and certification of powers of attorney, wills, deeds, contrasts and other legal documents for use Australia and internationally; 3) administering of oaths for use in Australia and internationally; 4) witnessing affidavits, statutory declarations and other documents for use in Australia and internationally; 5) certification of copy documents for use Australia and internationally; 6) exemplification of official documents for use internationally;7) noting and protesting of bills of exchange; 8) preparation of ships' protests; 9) providing certification as to Australian law and legal practice. Although it was once usual for Australian notaries to use an embossed seal with a red water, some now use a red inked stamp that contains the notary's full name and the words "notary public". It is also common for the seal or stamp to include the notary's chosen logo or symbol.
In South Australia, it is acceptable for a notary to use the letters "NP" after their name. Thus a South Australian notary may have "John Smith LLB NP" or similar on his business card or letterhead.
Australian notaries do not hold "commissions" which can expire. Generally, once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. In certain State, for example, New South Wales and Victoria, they cease to be qualified to continue as a notary once they cease to hold a practicing certificate as a legal practitioner. Even judges, who do not hold practicing certificates, are not eligible to continue to practice as notaries.
All Australian jurisdictions also have Justices of the Peace (JP) or Commissioners for affidavits and other unqualified persons who are qualified to take affidavits or statutory declarations and to certify documents. However they can only do so if
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the relevant affidavit, statutory declaration or copy document is to be used only in Australia rather than in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand expect for very limited purposes. Justice of the Peace (Jps) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. Therefore, a US notary resembles an Australian JP rather than an Australian notary.
David, R - Brierly, J: Major Legal Systems of the World Today. London 1985
Elgar Encyclopedia of Comparative Law (ed. by Smits, J) Chattenham, etc., 2006
Gerald, G: The Canadian Legal System (5[th] edn.) Scarborough 2004
Parkinson, P: Tradition & Change in Australian Law (3[rd] edn.) Sydney 2005
Lábjegyzetek:
[1] The Author is Deputy Public Notary.
Visszaugrás
