|This article needs additional citations for verification. (November 2013)|
An act is an instrument that records a fact or something that has been said, done, or agreed. Acts generally take the form of legal instruments of writing that have probative value and executory force. They are usually accepted as self-authenticating demonstrative evidence in court proceedings, though with the precarious status of notaries public and their acts under common law, this is not always so.
Common types of acts are legislative, judicial, and notarial acts.
Legislative acts, or more commonly acts of statute, are the cornerstone of statutory and regulatory law. They may include in a monarchical system any royal edict, proclamation, or decree setting forth or establishing law as it affects all citizens. In parliamentary or congressional systems, acts passed by a legislature are known as acts of Parliament or acts of Congress.
A notarial act (or notarial instrument or notarial writing) is any written narration of facts (recitals) drawn up by a notary public or civil-law notary authenticated by his signature and official seal and detailing a procedure which has been transacted by or before him in his official capacity. A notarial act is the only lawful means of proving those facts of which it is the recognized record, whereas on other matters it is usually inadmissible, because, being beyond the powers entrusted to the notary by law, it is non-official. In most common-law countries, multiple-page acts are bound together using a sewn or knotted ribbon (referred to as silk), the ends of which are secured by a wafer impressed with the notary's seal. This is called annexing or annexure.
Act in public form
The first category is known as an act in public form (Fr acte en minute, Du minuutakte, It atto conservato, Ger Urkunde in Urschrift, Sp acta protocolar), and is the preserve of notaries-at-law. Public form acts may take the form of a record of some activity which is intended or required to have evidentiary status, legal or administrative force or effect, or commercial effect. Acts in this form remain the cornerstone of civil-law notarial practice according to which they are composed as single narrative instruments written in the first person perspective of the notary.
The components of an act in public form are:
- protocol (preamble) which sets out introductory matters, noting:
- notary's name and status
- date and venue of act
- appearance of one or more clients (referred to as "appearers") and witnesses before the notary
- any capacity the appearer appears or is acting in
- how the notary verified the facts or allegations in the corpus
- corpus (operative part) which:
- recites appearer's intent,
- narrates facts and accomplished procedures,
- sets out the material terms and operative words (voces signatæ) of the power-of-attorney, contract, arrangement, obligation, conveyance, or other legal act embodied in the instrument, and
- refers to any appended material
- eschatocol (conclusion) which attests and certifies:
- that the document was read over to and acknowledged by the appearer, and signed (and in some cases sealed) by the appearer in the notary's and witnesses' presence, all in due form, and
- that the conditions of applicable local law concerning the formalities of document execution and binding nature have been met
- often the date and venue are repeated
- and finish with a signature block
^2 Based upon the elements of a notarial act in public form as found in Zablud's "Principles of Notarial Practice"(Melbourne, Australia: Psophidian, 2005), p.40ff
- in the past, following an eschatol would come further attestations which were additional notes concerning the due payment of notarial fees, the acknowledgment of interlineations or corrections, the proper recordation of the act, and any other post-editorial actions.
Traditionally, in civil-law countries, the preliminary drafts, called minutes (formerly protocols; Fr minute, Du minuut, It minuta, Ger Urschrift, Sp escritura matriz), are jotted in legal shorthand and record only the particulars. Their date, appearer, venue, and subject are logged in a notarial register, and the minutes are retained and kept in the notary's protocol (archive) while an engrossment (Fr/Du grosse, It spedizione in forma esecutiva, Ger Ausfertigung, Sp primer testimonio), a fully extended form in long hand under seal and signature, is handed to the appearer. The protocols are used thereafter as a master copy from which exemplifications (Fr expédition, It spedizione, Sp testimonio ulterio, copia simple, Du authentiek afschrift, Ger beglaubigte Abschrift), i.e. engrossed fair copies, may be made. In common-law countries, notaries prepare multiple duplicate originals fully executed and sealed, as a copy would not be admissible in court. One is archived as a file copy in the notary's protocol.
Act in private form
The second category is known as an act in private form (Fr acte en brevet, Du brevetakte, akte in originali, It atto rilasciato in originale, Ger im Original ausgelieferte Urkunde, Sp acta extraprotocolar), best represented by the notarial certificate (or docquet in Scotland). This is generally a writing that certifies the due execution in the notary's presence of a deed, contract or other writing or verifies some fact or thing of which the notary has certain knowledge. Notarial certificates are endorsed on or appended to a pre-existing document and attest to its due execution, genuine nature and validity, or legal status and effects. As a safety precaution, the certificate may also contain information such as the number of pages, a description of the document, its title, and any other distinguishing features in order to prevent pages from being added or removed. If affixed, short form certificates may also be embossed with a seal half on the certificate and half on the rest of the page.
Notarial certificates come in full forms or short forms. A full form includes preamble information like the date, venue, appearer's appearance, proof of identification, and so forth, as well as the principal attestation. A short form usually only includes the venue, date, and attestation clause. Both are then ended with a testimonium clause.
Typical parts are:
- the caption which includes the venue, a large right-facing bracket or parentheses followed by "to wit" or the abbreviation ss. for Latin scilicet which means the same thing, and to the right is the title, usually in reference to a case or matter;
- the preamble (see supra);
- the attestation proper, either in clause form or broken out into averments;
- the testimonium clause followed by a notary's signature, either styled with a large bracket and the appearer and witness signature block or with a signature block preceding and notary signature following.
- Typical examples:
- IN FAITH AND TESTIMONY WHEREOF I, the said Notary, have hereunto set and subscribed my hand and affixed my Notarial seal on this (day) day of (month) two thousand and (year). (India)
- IN WITNESS of which I have subscribed my name and affixed my seal of office at (city) aforesaid this (day) of (month) Two thousand and (year). (Australia)
- IN FAITH AND TESTIMONY whereof I the said notary have subscribed my name and set and affixed my seal of office at (city) aforesaid this (day) day of (month) two thousand and (year). (England)
- IN TESTIMONY WHEREOF, I have hereunto set my Notarial form and official seal of Office. (Canada)
- IN WITNESS WHEREOF, I have hereunto set my hand and seal of office. (U.S.)
- Typical examples:
- Peter Zablud, Principles of Notarial Practice (Melbourne, Australia: Psophidian, 2002), p. 39.