A public official whose main powers include administering oaths and attesting to signatures, both important and effective ways to minimizefraudin legal documents.
The origin of notaries public can be traced to ancient Rome, where a notarius was held in high regard as legal counsel. During that era only the few people who knew how to write were qualified to serve as a notarius. A notarius wrote legal documents, including contracts and wills, and retained them for safekeeping. A small fee was charged for those services, a tradition that continued to modern times.
As colonists settled in the New World, most transactions that required an oath or signature attestation were handled in the courts. During that period the few notaries who existed were appointed or elected in a manner similar to the election or appointment of judges. However, as trade with Europe began, the demand for notaries increased because of the large number of bills of exchange that needed to be witnessed. The authority to appoint notaries was transferred to the states, where the secretary of state (or another nonjudicial office) usually acted as the appointer.
In 1983 the Commission on Uniform State Laws passed the Uniform Law on Notarial Acts (14 U.L.A. 125), which covered nearly all aspects of the office of notary public, from the definition of duties to appointment policies. As of the early 2000s, most states use this model law as a basis for their own notary public statutes. These laws vary from state to state, and the amount of power that a state gives to notaries can depend on its history. For example, Louisiana was a French possession and used a civil code rather than a common law. It gives its notaries broad powers—almost equal to those of a justice of the peace. In Louisiana notaries' powers include making "inventories, appraisements, and partitions; … all contracts and instruments of writing; [and holding] family meetings and meetings of creditors …" (La. Rev. Stat. Ann. § 35:2 ).
California also gives notaries additional powers, allowing them to "demand acceptance and payment of foreign and inland bills of exchange, or promissory notes, to protest them for nonacceptance and nonpayment" (Cal. Gov't. Code § 8205 [West 1997]).
In some cases the notary responsible for a transaction has an invalid commission because of a technicality. If the notary already witnessed and completed the transaction before becoming aware of the problem, the transaction is still considered valid.
Notaries public have two main duties that remain consistent from state to state. Perhaps the most important duty of a notary public is attesting to signatures on documents. This duty is important because it aids in minimizing fraud; signature attestation must be done with the notary and the signatory in a face-to-face setting.
The process of notarizing a signature is simple. The person who wants his or her signature notarized must present sufficient evidence to prove his or her identity and then sign the necessary document with the notary as a witness to the signing. The notary completes the process by stamping or sealing, dating, and signing the document. This face-to-face procedure helps ensure the authenticity of the signature.
A notary public may also administer oaths in depositions or other situations. Even though this type of oath may not take place in court, the witness can still be held accountable and be punished for perjury.
In Ohio a notary can also hold an affiant in contempt if he or she is a reluctant witness. In the U.S. Supreme Court case of Bevan v. Krieger, 289 U.S. 459, 53 S. Ct. 661, 77 L. Ed. 1316 (1933), a notary public held a witness in contempt because he refused to comply with the requirements of the subpoena he was served. The court ruled that the notary was acting within his powers when he held the witness in contempt.
To become a notary, a candidate must complete several steps. A candidate must fill out an application and submit it to the appropriate government agency, usually the respective state's department of the secretary of state or the U.S. department of state. As part of the application procedure, the candidate must also take an oath of office and submit a bond. The purpose of the bond is to offer a small amount of monetary insurance in case the notary is sued. On average, notarial bonds are less than $5,000. If a notary is sued for more money than the amount of the bond, the notary is still personally liable for the difference between the bond and the sum awarded to the plaintiff.
Once an application is approved and the notary is commissioned, the notary must register in the county in which he or she resides and pay a registration fee. The commission itself has a time limit, which can range from two to ten years, with an average limit of four years. To renew the commission, the notary must repeat the application process.
Most states require that a notary be at least 18 years old and be able to read and write English. However, the latter requirement may change in the future because of the increasing number of transactions that take place in languages other than English. Some states require potential notaries to pass an exam as part of the application process. Others may require a notary to keep a detailed journal of the transactions he or she officiates.
Until 1984 many states required that a notary be a U.S. citizen or a resident of the state in which he or she would serve as a notary, or both. However, in Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984), the U.S. Supreme Court ruled that requiring a notary to be a U.S. citizen was unconstitutional under the Fourteenth Amendment's equal protection clause. Therefore, even though the plaintiff in the case was actually a Mexican native and longtime resident alien, it was unconstitutional to deny him a notarial commission simply because he was not a U.S. citizen. Despite this ruling many states have kept the U.S. citizenship requirement in their statutes.
Another challenge to the procedure for becoming a notary occurred in the case of Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961). In this case, an atheist objected to Maryland's notary public oath, which required him to acknowledge a belief in God. When his notary commission was denied, he sued. The case went to the U.S. Supreme Court, which ruled that, under both the Maryland Constitution and the U.S. Constitution, it was "repugnant" for an oath to require a belief in God.
Notaries can only be held liable for actions they take while performing the notary function. For example, although notaries are responsible for attesting to the validity of a signature, they are not responsible for the validity of the document. It is not considered malpractice for a notary to attest to a signature on a document that he or she knows is invalid.
A notary must "act as a reasonably prudent notary would act in the same situation." In an action against a notary, the burden of proof is on the plaintiff to show that the notary acted negligently. If the plaintiff meets this burden, the notary can be held personally liable for damages to all parties involved, including third parties.
Anderson, John C., and Michael L. Closen. 1999. "A Proposed Code of Ethics for Employers and Customers of Notaries: A Companion to the Notary Public Code of Professional Responsibility." John Marshall Law Review 32 (summer).
Kussmaul, Wes. 2001. The Future Needs You: The Notary Public in the Digital Age. Waltham, Mass.: PKI Press.
Rothman, Raymond C. 1987. Notary Public: Practices and Glossary. Chatsworth, Calif.: National Notary Association.
Van Alstyne, Peter J. 1998. Notary Law, Procedures & Ethics: A Complete Reference on Notarial Laws and Procedures in America. Salt Lake City, Utah: Notary Law Institute.
"Notary Public." West's Encyclopedia of American Law. . Encyclopedia.com. (April 18, 2019). https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/notary-public
"Notary Public." West's Encyclopedia of American Law. . Retrieved April 18, 2019 from Encyclopedia.com: https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/notary-public
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