The notary is a public officer to whom the State entrusts the power to confer public trust, i.e. the status of legal proof, to the deeds he draws up. So everyone – including the courts – must accept as true what he has attested, unless the crime of forgery is established.
A public deed is proof:
- of the origin of the document produced by the public official,
- of the parties’ statements made in the document,
- of the other facts that the official states to have occurred in his presence or have been carried out by him.
For this reason, the notary must personally determine what the will is of those persons who engage him and the goal to be achieved, in order to prepare the deed, according to the law, in the most suitable and economical manner. To this end provision of the notary’s advice prior to the signing of the deed is essential.
In performing his function, the notary must, by law, be independent and impartial: he must protect the interests of all parties equally, regardless of who has appointed him. He must, therefore, decline to act whenever there is a conflict of interest (for example, when his own relatives are parties to a transaction). He performs a function of prior control of legality: he has a duty to abide by the law and cannot and must not accept transactions prohibited by law. Thanks to the checks carried out by notaries, in Italy there are essentially no disputes regarding real estate transactions (only 0.003% give rise to disputes). In addition, due to the abolition in 2000 of the “homologation” review by the courts and the subsequent assumption by the notary of the responsibility for the establishment of new companies, a corporation, which until 2000 needed about 150 days from its creation to its effective operation can now be operating on the day of the deed, or at most in a few days.
Finally, the notary collects on behalf of the State taxes associated with all transactions (registration, mortgage and land taxes, etc.). Several billion euros of indirect taxes and capital gains tax pass annually through the notarial network without the payment of any commission by the State, and these are payable even if not collected from the client.