Civil Law Notaries and Law model
The notariat in our model of written law, continental law
In the french legal system, the notary establishes indisputable deeds. Legal professional and public officer, the notary is appointed by the State to confer authenticity to the agreements between the parties and act as an impartial advisor to them. It is based on the law which establishes legal frameworks to govern contractual relations. The proof is based on the pre-eminence of the written word. The law is the main source of law.
The State delegates to a qualified professional, the notary, the mission of ensuring the security of contracts by authenticating the acts he directs.
Formalism is protective of the individual's will. He guarantees his free consent. The legal "consumer" thus commits with full knowledge of the facts.
The impartial advice of a qualified professional, commissioned by the State to authenticate contracts and ensure legal security, is protective of persons who contract.
The notariat in the Anglo-Saxon system
In the Anglo-Saxon system, case law is an essential source of private law. Cases judged by the courts become "precedents" which are binding as rules of law, unless otherwise provided by law. There is no tradition of codification.
Contracts express the will of the contractors after a confrontation of their respective advice. When there is a counsel, the judge decides most often, by reference to the "precedents" that may apply to the case at issue.
The disadvantages of the Anglo-Saxon system
- Contracts are voluminous, because it is necessary to consider all hypotheses, to leave no room for forgetfulness or bad faith. The conclusion of contractual agreements is more a matter of a balance of power between the parties and their counsel than a concern to achieve a balanced and equitable solution. The most experienced, the most skilful or the richest thus appears to be the most able to impose his point of view.
- The legal service is conceived and treated as a "product" subject to the rules of the economic market that are binding on legal professionals. They are therefore quite naturally led to favour the conquest of new market shares over an objective.
- Their cost puts a strain on companies' budgets: delays in court, costs and procedural fees are often high. It also weighs on insurance companies at the rate of the sums paid. In the end, it is consumers who suffer the consequences because insurance premiums are constantly rising.
- Knowledge of the law results from "precedents" to which the courts refer. They are not necessarily the same for everyone, resulting in a disparity in judicial solutions.