The Civil Law Notary - Neutral Lawyer for the Situation A Comparative Study on Preventative Justice in Modern Societies Peter L. Murray Robert Braucher Visiting Professor of Law frorn Practice Harvard Law School Rolf Stürner Professor Ordinarius of Law University of Freiburg Judge emeritus of the State Court of Appeals of Baden-Württemberg in Karlsruhe Verlag C.H.Beck München 2010
Contents Preface Selected Abbreviations Selected Literature V XV XVII Chapter 1. Introduction 1 a. The Lawyer for the Situation" in American Legal Culture 3 b. Civil Law Notaries as Neutral Jurists in Transactional Law 5 c. The Purpose of this Work 7 Chapter 2. History and Background of the Civil Law Notariat 9 I. Early Beginnings 9 II. The Development of the Notariat as a Free Profession in Northern Italy 10 III. The Path of the Notariat to Germany 11 IV. The Further Development of the Notariat in Germany 12 V. The Meaning of the Italian and French Developments and the Notariat in other European Countries 13 1. Italy 13 2. France 15 3. The Notariat in Other European Countries 18 4. England and Northern Europe 20 5. The Notariat in Other Parts of the World 22 VI. Conclusion 23 Chapter 3. The Modern German Notary - Neutral Transactional Legal Professional 25 1. The Public Role and Functionof German Notaries 25 2. The Role of German Notaries in Private Law Transactions 28 3. Procedures for Transaction Authentication 31 4. The Forms of Notarial Practice in Germany 34 5. Education and Training of Notarial Candidates 37 6. Selection, Appointment and Compensation of Notaries 38 7. Liability and Discipline of German Notaries 40 8. Public Perception of the Role of Notaries in Germany 41
X Contents Chapter 4. Residential Real Estate Transactions in Germany 43 1. Description of Typical Residential Real Estate Transaction 43 a. Preliminary Consultation 44 b. The German Title Registry System 45 c. Contract Preparation 48 d. Contract Signing and Authentication 49 e. Entering a Preliminary Notice in the Land Registry 50 f. Implementation of the Contract 51 g. Arrangements for Financing 51 h. Filing the Application for Re-Registration of Title 53 2. Costs of Residential Real Estate Transactions in Germany 54 Chapter 5. Transactional Law Professionals in England, France, Sweden and Estonia 57 1. Transactional Law Professionals and Real Estate Transactions in England 59 a. Transactional Law Professionals in England 59 b. Residential Real Estate Transactions in England 62 c. Conveyancing Costs in Residential Real Estate Transactions in England 66 d. Public Notaries in England 67 (i) Public Notaries General and Scrivener Notaries 70 (ii) Regulation, Training and Admission of English Notaries 71 (iii) Differences between Civil Law and English Notaries 73 2. Transactional Law Professionals and Real Estate Transactions in France 74 a. Transactional Law Professionals in France 74 (i) Education and Training of French Notaries 76 (ii) Appointment and Assignment of Notaries 77 (iii) Compensation of Notaries 79 (iv) Liability and Discipline of Notaries 79 b. Real Estate Transactions in France 80 c. Conveyancing Costs in France 86 3. Transactional Law Professionals and Real Estate Transactions in Sweden 88 a. Real Estate Brokers as Transaction Professionals in Real Estate Transactions 88 (i) Function in Real Estate Transactions 88 (ii) Qualification and Licensing 89 b. Residential Real Estate Transactions in Sweden 90 (i) Purchase and Sales Contract 90 (ii) Preparation of Sales Confirmation 91
Contents XI (iii) Sales Confirmation Agreement 92 (iv) Land Register 93 c. Fraud by Impersonation in Swedish Real Estate Transactions 93 d. Cost of Professional Conveyancing Services in Sweden 94 4. Transactional Law Professionals and Real Estate Transactions in Estonia 97 a. Transactional Law Professionals in Estonia 97 b. Real Estate Transactions in Estonia 97 (i) Brokers 97 (ii) Notarial Sales Contract 98 (iii) Transfer of Title and Land Register 99 c. Conveyancing Costs in Estonia 100 Chapter 6. Transactional Law Institutions and Practitioners in the United States 103 1. The Effectuation of Legal Transactions in the United States 103 a. Private Law Transactions by Private Parties 104 b. Formal Requirements and Public Policy 105 c. Regulation and Public Policy 107 2. The Roles of Legal Professionals in American Legal Transactions 109 a. The Adversarial Model of the American Legal Professional 109 b. American Lawyers' Regulated Monopoly of Legal Transactions 111 c. American Lawyers as Neutrais? 112 d. Regulation of American Lawyers and Neutral Practitioners 113 3. American Notaries Public and their Roles 114 a. Notaries Public in the Common Law States 114 b. Notaries Public in Louisiana 115 c. American Notaries and the Civil Law World 118 4. Adversarial Legal Professionals in Legal Transactions - Tensions and Adaptations 119 a. Real Estate Transactions and Title Companies 120 b. Formation and Representation of Corporate Entities 122 c. Mediation 124 d. American Receptivity to the Development of Neutral Institutions of Preventive Law? 125 Chapter 7. Residential Real Estate Transactions - The American Model 127 a. Background to American Real Estate Conveyancing 127
XII Contents b. Conveyancing Practices and the Roles of Legal Professionals in Maine 132 c. Conveyancing Practices and the Roles of Legal Professionals in New York 136 d. Conveyancing Costs - Maine and New York 141 e. Observations on American Real Estate Transactions - Maine and New York 144 Chapter 8. Comparative Observations 147 1. Comparative Costs 148 2. Functional Efficiency 153 3. Relationship to Human Equality and Dignity 158 4. Comparative Quality of Advice to Transaction Participants 160 5. The Importance of Neutrality 162 Chapter 9. The Future of the Civil Law Notariat within the European Union 169 I. The Notariat and the History of European Legal Culture 169 II. The Challenge to the Notariat within Europe and the European Commission 171 1. The Position of the European Commission 171 2. European Legislation 174 3. The European Court of Justice 176 III. The Liberal Professions in the Thrall of Principles of Profit Maximization 177 IV. The Self-Image of the German and Latin Notariat 181 1. The Professional Image of the German Notariat 181 2. The European Framework 182 V. The Commission's Vision of a Deregulated European Notariat 185 VI. The Notariat and European Legal and Social Culture 187 1. The Notariat in Traditional European Society 187 2. The Changed Concept of Freedom in a Competitive Marketplace Society 187 3. The Role of Economic Theory as a Legitimation of Change 188 4. The Political Standing of the Notariat within Europe 189 a. The Future of European Social Culture and its Meaning for the Notariat 190 b. The Notariat's Will to Defend Itself 191 Chapter 10. The Potential for Neutral Transaction Lawyers in the United States 193 1. The Current Reality in Real Estate Transactions 193
Contents XIII 2. American Lawyers and Mediators 195 3. Developments in Professional Regulation 196 4. An American Neutral Transaction Professional? 197 5. American Institutions of Preventive Law 199 6. Neutral Transaction Professionals and Seif Executing Documents 200 7. Practical and Transitional Issues 202 8. Recommendation for Neutral Transaction Lawyers 204 Chapter 11. Conclusion 207 1. Civil Law Notaries and Preventive Law 207 2. The Role of Public Legal Institutions in Private Law Transactions 208 3. Notaries and Access to Justice 209 4. Neutral Transactional Professionals and Transaction System Integrity 210 5. Control of Costs for Transaction Professionals 210 6. The Growth of Neutral Roles in Anglo-American Legal Culture 211 7. Regulation of Neutral Transaction Professionals 212 8. The Need for Ongoing Dialogue 213 Index 215