In principle, a contract can be carried out with ease, in writing, and with the sole presence of the parties concerned. This is called a private deed. Except that in practice, the risks that the transaction will then be disputed and canceled are real.
This is why the law requires, for transactions with the highest stakes, to establish an authentic instrument with a notary.
A necessary legal force
A notarial deed offers several legal certainties. First of all, its date is considered certain, which simplifies the proof. Insofar as the elements have been established and verified by the public official, the authentic instrument is also considered to have probative force. Only a complex procedure can then challenge its content. Finally, if the debtor does not subsequently fulfill his pecuniary obligations, the creditor will not need to obtain a judgment to claim his payment, since this notarial act is enforceable as of right, like a Justice decision.
However, these legal guarantees are only valid when everything is done according to the rules. In particular, the legislation requires that the notary receive all the parties concerned, or their representatives, at the same time in his study, in order to sign the document. In this way, the public officer can verify their identity, their capacity and inform them of the scope of their commitments. Its role is indeed to ensure that people knowingly sign.
Deviating from the rules
As soon as individuals wish to establish an authentic will, conclude a marriage contract, consent to a donation or even sell or buy real estate, it is necessary to go through a notarial act. Except that with the current health crisis, it is recommended to avoid travel and contact as much as possible. It is to overcome the impossibility of going to his notary that the government published an express decree in the Official Journal of April 4, 2020.
This text provides that "until the expiration of a period of one month from the date of cessation of the state of health emergency [or June 24 if not extended], the undersigned notary may, by way of derogation, draw up a notarial act in electronic form when one or all of the parties or any other person contributing to the act are neither present nor represented ”. The public officer can thus receive the parties' consent remotely using a videoconference system and collect their signatures electronically. The dematerialization of the authentic instrument has indeed been possible for more than a decade, the first having been signed in 2008. Authenticated by the notary using special software, this version has the same legal force as its counterpart in paper.
Society
Coronavirus in New Aquitaine: For real estate, "we're going to have to catch up, but this should only be a parenthesis"
Podcast
Coronavirus: Do we have the right to continue its work during confinement?
- Economy
- Housing
- Legislation
- Contract