V. On Notaries, Scribes, Apparitors

What is a notary, a scribe, an apparitor? - A notary or tabellion is said to be one who is constituted by legitimate authority for preparing and preserving acts or public instruments, which produce faith both in judgment and outside judgment. Hence he is also called an actuary. A scribe or secretary is one who from office reports in writing testimonies, documents brought forward, sentences of judges, and all other things which are transacted in tribunals. An apparitor is one who from office brings pledges and commands of justice, and completes executions decreed by the judge. But a lictor is said to be one who executes a sentence either of capital punishment or of lashes.

What are the qualities and obligations of a notary? - A notary must be experienced, diligent, faithful, and tenacious of justice. But especially he must know well those things which are required for the proof of contracts in the external forum. Cf. C. I. 1312 ff.; C. G. 1315 ff. The reason is that his office necessarily requires this. And especially for him "imperitia is numbered as fault." R. 132 de Reg. Iur.; Trent, sess. 22, c. 10 de R.

You will resolve: Notaries are unjust especially in the following cases: If they are ignorant of the things which pertain to their office, and for that reason do not rightly prepare instruments; if, with detriment to contracting parties or others, from negligence they omit necessary solemnities, for example, to use suitable witnesses, to place signatures, to indicate day, month, year, etc. If they prepare a false, usurious, or unjust instrument; if, to the damage of another contracting party or of a third party, they feign in the instrument those things which are not; if they put false notes of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they prepare acts which exceed their office, or if they exercise their ministry outside the territory assigned to them; for then their acts are by that very fact void. If they do not describe faithfully the wills of the contracting parties, or through ambiguous drafts provide place for lawsuits and injustices; if they do not warn the parties concerning clauses which can harm them, or concerning difficulties which can arise from them. For they are held to these things from quasi-contract with the parties. If they falsely write that the sum has been paid before them, or already before, with damage to the other party or to a third party; likewise if they easily write such things, gravely suspecting that they are being deceived by the contracting parties; for then they cooperate in their sin. If they guard acts and instruments negligently, with danger of damage to the parties; if they delay the expedition of instruments so that they may extort money; if they commit something to a copyist with danger of error. If they change anything in the protocol, from which some right is violated or impeded; if they admit false witnesses; if they do not exhibit, conceal, or deny a transcript of some necessary testimony to their client. If they communicate acts to others than the parties; if by their fault they lose protocols; if they violate oaths or secrets; if they add anything to, or subtract anything from, the sayings or deeds of the parties, or from the testimonies of witnesses; if they do not transcribe all things sincerely, as they stand. If they neglect to watch over their ministers, and because of this instruments are badly prepared; for notaries are bound to answer for all ministers whom they use. If they sign instruments, whether prepared by other notaries or by their own ministers, not duly prepared, before they have diligently reviewed them and have had perfect knowledge concerning the things which are contained in them; likewise if, where several notaries are required, they declare absent ones as present.

If they exact a stipend beyond what is just, or if they seek beyond the tax or approved custom, or if they amplify writings, or write with a larger or more extended character, so that the number of pages is notably increased; if they draw out affairs to be treated for the sake of increasing salary. In all these and similar matters notaries are held in themselves under grave obligation, and to restitution as unjust damagers or cooperators. L. 230, 231; C. B. 841; C. Si culpa 9 de Iniuriis. Cf. n. 39.

Is a notary bound to restitution toward the treasury, if in preparing an instrument of sale or of inventory, at the request of the parties, or even with himself hinting at it, he does not inscribe the true price of the thing, but another lesser one, so that the tax may be diminished? - It is controverted. Some affirm, because he lies and thus cooperates in the defrauding of taxes, which is inequitable and unjust on the part of a public official.

Others deny, provided at least the lowest price, or the middle, or a little less than above half, is reported in the authentic writing. The chief reason of these is that this is the common usage of paying taxes. And equity does not permit that the good be burdened more than the bad. Wherefore, if private persons can effect this, notaries can also prepare the act, and use a restriction not purely mental, namely of declaring the price which by received custom is subject to tax. Finally, others excuse him totally. The reason is likewise: 1. the custom even of fearful persons; 2. because if the parties are not held by dissimulating the true price, neither is the notary held from cooperation; for although he is a public official, nevertheless he is not constituted as superintendent of taxes for exacting taxes, but for preparing instruments. Cf. vol. 1, n. 234. But he can sin gravely against charity toward himself. For penal Codes decree grave penalties against public officials who act fraudulently. C. I. penal 275 ff. Likewise he can easily sin by a lie against truth. Cf. n. 39. Nor indeed can mental restriction be understood in a public official fulfilling his office; nor can that mental restriction be understood in a public document which ought to serve not only for the payment of taxes, but for several other effects of commutative justice. Wherefore a broadly mental restriction cannot have place in this sense, that this is the price liable to tax. Nor indeed can there be mental restriction in this other sense, that, since in the present matter taxes are unjust, this is the price liable to just tax. This second explanation also cannot be admitted, because the injustice of the law, since the matter is not clear and evident, cannot be affirmed, and anyone in the case would become judge of that justice. Justice at least, from the general rule, is presumed, when injustice is not clear. But a manifest lie is had when in truth there is no sale, but a mere donation. And indeed the lie is often, if not always or almost always, damaging to others.

Does a law establishing a tax for honoraria or stipends to be received oblige in conscience? - This question has place for all those to whom a fee is owed for some office which they carry out in judgments. Now Navarrus and others affirm, since it is a just law. But Lugo and others deny, because since the notary and other ministers of justice must live from the stipends of their proper office, and with the passage of time the prices of things and expenses increase, according to custom, concerning food and clothing, but those ancient laws remain always the same with the passage of time; therefore they themselves do not unjustly exact something above the tax, especially if the circumstances of labor and skill are attended to. "And the Salmanticenses say that this opinion of Lugo seems more conformable to equity in these times." Indeed they add that a tabellion can receive an extraordinary stipend if he furnishes extraordinary labor. L. 231. Cf. l. 3, n. 180, 181.

Does a notary sin who prepares instruments on Sunday or a feast day? - By custom now general, they can prepare any instruments whatever, provided they do not pertain to contentious jurisdiction, that is, to forensic business. Thus they can prepare instruments of contract, testaments of the sick, matrimonial agreements, processes of elections to public office, and other similar things. But writings pertaining to the contentious forum they can by no means prepare on feast days. This is prohibited not only by canon law, but by civil law itself. But if a notary prepared such acts on a feast day and affixed a different assignment of day, he would sin against ecclesiastical and civil law, and would write a false instrument. Yet nothing prevents the whole context of the writing from being drawn up on a feast day, to which afterward, on a legitimate day, signatures and the other solemnities are added.

What are the qualities and obligations of secretaries? - A secretary himself also must be skilled in his office, faithful, diligent. The reason is that this is necessarily demanded by his office.

You will resolve: A scribe can commit various injustices, especially: If he does not apply due diligence to reporting into writing exactly all things heard and established or decided; for omission in matters of this kind can easily become grave. If he does not use serious and constant attention for reporting into authentic books all things brought forth and transacted in the tribunal; for very easily a defect of attention in a scribe can induce grave fault and obligation of restitution, unless it is altogether involuntary. For who does not see how great damages can follow from even a slight defect on the part of secretaries?

If from malice he omits something in writing, or if he adulterates or badly guards public tablets committed to him; if he does not place or take care that due formalities and signatures are placed; if he does not faithfully transcribe testimonies, whether by exaggerating, or diminishing, or inverting. If in distributing lawsuits he obeys favor rather than order; if for increasing salary he makes the acts to be distributed greater, for example, by writing on two pages the things which could have been reported on one. If he betrays a secret committed to him; if he manifests a sentence not yet published; if he shows completed processes to the parties without the judge's prescription. If he hands over acts of the judge to the parties before they have been signed according to the legal forms. For then he exhibits a defective and false instrument, whose expedition is considered of no value. L. 229.

What are the qualities and obligations of an apparitor? - An apparitor himself also must be sufficiently instructed concerning all things which pertain to his office. He must furnish fidelity and charity in executing the commands of the tribunal. The reason for the first is that it especially falls to him not to omit any necessary formalities in his acts; otherwise he would often injure justice, and would be bound to repair the damages arising from it. The reason for the other is that he must beware equally both of negligence and of rigor and vexation toward those whom public justice pursues.

You will resolve: Apparitors conduct themselves unjustly especially: If they allow themselves to be corrupted by price or favor to the prejudice of the client, for example, by neglecting denunciations of sentences, or by doing other things from which they are the cause why the creditor cannot receive payment. Likewise by favoring certain debtors in solidarity, so that they do not comprehend them in executions. If they adulterate juridical acts; if they do not execute them at the prescribed time, and from delay or acceleration damage follows for the plaintiff or defendant. If, while searching houses, they act more harshly so that they may extort some gift; if they inflict unjust force or another injury. If they exceed the mandate of the judge or the statutes of the law in seizing the things or goods of private persons; if they do not preserve a just price in the sale of seized things, if they retain part of this price for themselves, etc. C. I. Civil Procedure 41, 42.

The things said concerning an apparitor are applied in due manner to other public ministers.

Are apparitors bound to restitution if they have received a stipend above the tax determined by law under the title of donation? - R. Negatively, if it concerns a tax determined by ancient laws, remaining the same. Cf. 50. But otherwise affirmatively in itself. The reason is that such a donation generally cannot be called spontaneous. Hence, if the excess of price is something grave, they can be obliged under mortal sin to restore it. Generally; for in many circumstances the donation can and must be considered entirely spontaneous. They can; for not every less spontaneous donation is to be judged to lack that consent which suffices for transferring ownership. For not rarely occasions offer themselves even to the unwilling, which import a certain necessity of giving, and yet no one thinks that the burden of restoring should be imposed on the donees.

Moreover, to receive gifts, after an oath has been furnished, is prohibited to ministers of any order in the Roman Curia from the Constitution Sapienti Consilio, Order to be observed, Common Norms, chapter 3, and also to synodal examiners.

Can an apparitor exact multiple salary if he brings different summonses on one and the same occasion? - From natural law considered in itself alone, it seems that it must be affirmed, because he furnishes the same utility to each one requiring him, as if for one alone he undertook the journey and work. Thus St. Liguori, H. A. tr. 13, n. 68, etc. From civil law this is prohibited. Yet usage has prevailed, with the Government knowing and seeing, that advocates and procurators arrange the matter thus, that for each summons apparitors have almost the same price. Lugo d. 37, n. 138.

Must lictors and apparitors execute a sentence if it is unjust? - Affirmatively, if they themselves only think the sentence to be unjust. For they themselves are not judges, and by acting otherwise they would usurp the office of the judge to themselves. Besides, this would be to the very grave detriment of the public good. R. Negatively, indeed they cannot, if the sentence is evidently unjust and to execute it is intrinsically evil, as to kill a man who is innocent and not proved guilty. It is controverted if, although the sentence is unjust, nevertheless to execute it is not intrinsically evil, as to extort goods from one condemned, so that they may be made public. It seems that it must be denied, because as a judge cannot condemn one innocent and not proved guilty, so neither is it lawful for an apparitor to execute his unjust sentence. But he affirms D'Annibale, 3rd ed., p. 2, n. 592, because the damage of the republic prevails. This indeed has force when the sentence, although materially unjust on the part of the thing, is nevertheless at least formally just on the part of the judge, because namely he observed judicial form and right process.

The Angelic Doctor has these things concerning the present question, 2. 2. q. 64. a. 6 ad 3: "The minister of a judge condemning an innocent man, if the sentence contains an intolerable error, ought not obey; otherwise executioners who killed martyrs would be excused. But if it does not contain manifest injustice, he does not sin by executing the precept, because he himself does not have to discuss the sentence of the superior; nor does he himself kill the innocent man, but the judge, to whom he furnishes ministry." C. Pastoralis section Quia vero de Off. et pot. iud. deleg.