"The more a notary, the less a judge"
These are the words used by a famous legal practitioner (Carnelutti) when defining, in essence, the function of a notary (which is the most important of activities entrusted by the law to the notary).
The quote means that the more successfully a notary carries out his work- to ascertain and interpret the will of different parties (people's wishes) which involves the process of completing a contract and drawing up with clarity and in respect of the law the respective clauses then there will be less need to turn to a judge (that is, there will be less risk that the notarial deed will be the cause of lawsuits). This is why the notary is unable to draw up acts that have been specifically forbidden by law (section 28 of the notarial law) and is obliged to be sure of the parties' identities (section 49 of the notarial law) and to personally ascertain their will (section 47 of the notarial law).
The obligations are extremely strict and if breached the consequences could entail civil and disciplinary liability (the notary may be suspended or in very serious cases removed from office) and criminal liability (for forgery of a public deed). The notary is a ministerial officer appointed to draw up deeds among living people (sales, exchanges, divisions, loans etc.) and by last will (wills), attest their truthfulness, preserve them, issue probate copies, certificates (summaries) and abstracts (that is partial copies) (section 1 of the notarial law).
The deed drawn up by a notary is a public deed, since he is entitled to acknowledge its public truthfulness (for this reason the notary is a public officer); as such, the notary’s deed has a special legal power: what the notary attests in the notarial deed (i.e: the deed has been read before the parties or a statement has been made or undersigned before the notary) can be considered as full evidence (and is to be considered as true even by a judge) unless the crime of forgery has been ascertained. The notarial deed is required by law for any deed or contract requesting the highest standard of lawfulness, the identity of the parties and compliance with their will, since these are elements of great importance for the following reasons:
- their social and economic content and their complexity (for example: sales, divisions, loans, real estate contracts, deeds setting up companies or modifying articles of associations, constitutions of associations willing to obtain legal status, etc.),
- the effects produced with reference to the civil status of an individual (for instance the acknowledgement of a natural child),
- the public interest in the free exertion of the individual will and in its being translated into a legal language (for instance, wills and donations).