Liability of notaries - how does a notary be liable?

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A notary public is one of the most respected professions of public trust. This is due to the fact that, as a rule, notaries are obliged to oversee the legality and security of legal transactions. Documents drawn up by notaries have the power of official documents, and thus have significant legal effects for the entities of these activities, as well as for third parties. No wonder that representatives of this profession are required to be fully professional and fully comply with the law. Hence, the liability of notaries is very broad - they bear it under civil, criminal and disciplinary law. Moreover, each notary public is required to have liability insurance.

The liability of notaries under civil and disciplinary law is regulated by the Notaries Law (hereinafter referred to as the Notaries Law). Pursuant to the above act, when performing notarial activities, the notary is obliged to ensure that the rights and legitimate interests of the parties and other persons for whom this activity may have legal effects are properly secured. He is liable for damage caused in the performance of notarial activities, taking into account the special diligence to which he is obliged to perform these activities. In turn, criminal liability results from Art. 231 of the Penal Code (hereinafter referred to as the Penal Code). According to this provision, a notary public is a public official who is responsible for exceeding his powers or for failing to fulfill his duties as a result of which he acts to the detriment of a private or public interest. What exactly is each of these responsibilities? What are the penalties for illegal activities? We will answer these questions in this article.

Obligation of third party liability insurance

Under Art. 19a of the Law on Notaries, each notary is subject to compulsory third party liability insurance for damages caused while performing notarial activities. This obligation is the result of the notarial compulsion to which many legal actions are imposed, which are required by various acts to form a notarial deed. These activities, such as real estate trading, have significant financial consequences for the parties to contracts drawn up and signed by a notary public. Therefore, in the event of damage, the notary public must be able to bear the financial consequences of his actions. Of course, the discussed liability extends to all activities performed by a notary public, including those which are not required by law to adopt the form of a notarial deed.

The scope of compulsory third party liability insurance is quite wide. It covers damages caused by a tort and resulting from non-performance or improper performance of an obligation, during the period of insurance coverage, during the performance of the notary's activities. However, it should be emphasized that the scope of the obligatory notary's insurance cover includes the activities listed in Art. 1 § 1 of the Law on Notaries - that is activities which the parties are obliged to or wish to notarize. Thus, other activities, such as collection of taxes and court fees and their transfer to the competent tax offices and district courts, are no longer subject to this protection.

The Supreme Court in its judgment of 3 September 2009 (file ref.no. I CSK 60/09) stated that:

intermediation of a notary public in the transfer of the due court fee to the court cannot be equated with a notarial act or an act performed in the performance of a notarial act, and therefore it is a mistake to consider that this intermediation is covered by the obligatory civil liability insurance of notaries”. The notary's insurance obligation arises no later than on the day preceding the date of the first notarial act. The minimum guarantee amount is the PLN equivalent of PLN 50 thousand. euro. The guarantee sum may be extended to EUR 1 million.

Liability

The civil liability of notaries is regulated in Art. 49 Law on notaries. Pursuant to this provision, a notary public is liable for damage caused in the course of performing notarial activities under the terms of the Civil Code Act (hereinafter referred to as the Civil Code). This regulation imposes an obligation on the notary to exercise due diligence in performing activities that should be manifested in the professionalism and justified inquisitiveness of a notary, necessary for the proper performance of a notarial act.

It should be emphasized that the liability of notaries is based on the principle of fault.It includes both willful and unintentional fault in the form of recklessness and carelessness. At the same time, negligence, due to the requirement of special diligence by a notary, is treated more severely than in the case of other entities. The notary is responsible both for the losses suffered by the aggrieved party and for the expected benefits that could have been achieved had the harm not been done to him. When calculating the extent of the damage, the normal consequences of the notary's action or omission are taken into account, as well as the contribution of the injured party to the occurrence or extent of the damage.

The scope of responsibility covers not only the notarial activities themselves, but also all events taking place in connection with them, including it is about the obligation to maintain notarial secrecy or the obligation to provide information.

The provision of art. 49 of the Law on Notaries binds the civil liability of notaries to Art. 415 and art. 472 of the Civil Code, according to which the debtor (notary) is responsible for failure to exercise due diligence, unless a specific provision or contract provides otherwise. However, it should be noted here that in the case of notaries, contractual exclusion of liability is not possible. This was confirmed by the Supreme Court in its judgment of February 5, 2004 (file reference: III CK 271/02), in which the Court emphasized that:

The provision of Art. 415 of the Civil Code, and therefore it is a tort liability. With such a basis of liability, the notary is liable to clients also when he has drawn up the contract in accordance with their wishes, although in the light of the law on the notary public, he should have refused to prepare it as unlawful. Accepting contractual liability of a notary could in such a situation lead to a significant limitation or even exclusion of the notary's liability towards the parties to the transaction, which is not justified by the act'.

So, can a notary public be released from liability? Despite the strict rigor covering the entire activity of the notary's office, the notary may release himself from liability by proving that the non-performance or improper performance of the obligation is the result of circumstances for which he is not responsible.

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Disciplinary Responsibility

Disciplinary liability is the so-called the internal responsibility of the professional corporation. This liability does not exclude other types of liability (civil and criminal). The Law on Notaries lists several offenses for which a notary can be punished with one of a number of disciplinary penalties.

The first category of offenses is professional misconduct. They are related to shortcomings in the sphere of notarial duties imposed on notaries by statute or local government. Such violations are non-confidentiality, failure to comply with the information obligation, taking up occupation or employment without the consent of the council of the notary's chamber, failure to participate in the general meeting.

Another group of offenses is the behavior of a notary public that disregards the dignity or dignity of the profession. Behaviors that may be considered unethical have not been clearly classified anywhere, therefore they are often very subjective and may be interpreted differently depending on the views and character of the evaluator. At the same time, we can read from the jurisprudence of disciplinary courts that the unambiguous situations are certainly advertising notary services in the media, public alcohol abuse and social contacts with the criminal world.

Other very important offenses that may be committed by a person practicing the profession of notary public is the failure to pay contributions to the notary's self-government and failure to comply with the above-mentioned obligation to conclude a civil liability insurance contract for damage caused in the performance of activities.

The catalog of disciplinary penalties is described in Art. 51 Law on Notaries. They are:

  • admonition - a copy of a legally valid decision is attached to the personal files, however, apart from the mention in the files, the penalty does not have any further effects;

  • reprimand - imposing this penalty entails a ban on participation in notarial self-government bodies and in disciplinary judiciary for a period of 3 years;

  • fine - this fine may be imposed up to five times the average monthly salary in the enterprise sector and may not be less than half of this salary. Moreover, a financial penalty has the same effects as a rebuke;

  • deprivation of the right to run a law office - this penalty may be temporary or imposed for life. Most of the offenses are subject to a temporary ban on practicing the profession, however, violations of a criminal nature, which result in criminal liability, most often result in a life ban on practicing the profession.

Criminal responsibility

As indicated at the beginning, a notary has the status of a public official, and as a result, he is subject to criminal liability provided for in Art. 231 of the Penal Code

Pursuant to this provision, a public official who, by exceeding his powers or failing to fulfill his duties, acts to the detriment of public or private interests, is subject to imprisonment for up to 3 years. However, if the act was done for the purpose of material or personal gain, the penalty may be aggravated up to 10 years.

In turn, a criminal act committed unintentionally, as a result of recklessness or carelessness, may result in a fine, restriction of liberty or imprisonment for up to 2 years (if the damage is significant).

The fact that a notary has been recognized as a public official entails the possibility of criminal liability for breach of professional secrecy. Pursuant to Art. 266 of the Penal Code, a person who discloses or uses information that has become acquainted with in connection with the function, work, public, social, economic or scientific activity is subject to a fine, restriction of liberty or imprisonment for up to 2 years.

Liability of notaries - summarized

More is required of a notary, who is a person of public trust, that's for sure. The legislator has transferred to the notary public some of the powers of state bodies in the area of ​​activities that are of high importance in legal terms. The task of a notary public is to ensure the security of legal transactions and its credibility. With its activities, the notary's office shapes the financial situation of individual entities, influences economic relations, and guarantees compliance of civil law transactions with the law. The activities of notaries are also intended to limit or even eliminate the risk of future litigation.

Considering the above, it is not surprising that their profession has been burdened with such a wide range of restrictions and responsibilities. Notaries, for the actions taken, may be responsible not only in terms of civil or criminal law, but also disciplinary law. Moreover, in order to be able to practice their profession, they must be covered by civil insurance for the minimum guaranteed amount of the PLN equivalent of PLN 50,000. euro. All this is established so that all participants of legal transactions (of which notaries are a part) have a guarantee of both legal and financial security.