Chapter IV. On the Obligations of Scribes and Notaries

19. • A scribe or secretary (in French, greffier) is he who reports in writing the testimonies, sentences of judges, and all other things which are transacted in tribunals. Hence he is accustomed to be considered as it were the right hand of the judge and his public and authentic secretary.

But a scribe can commit various injustices, especially:

1º If he does not employ due diligence in exactly reporting in writing all things heard and established or decided; for an omission in things of this kind can easily become grave.

2º If he does not use serious and constant attention in reporting into authentic books all things pronounced and transacted in the tribunal; for very easily a defect of attention in a scribe can induce grave fault and the obligation of restitution, unless it is altogether involuntary. For who does not see how great damages can follow from even a slight defect ¹ on the part of secretaries?

¹ You have here an example of one who in conscience is bound for slight fault, that is, who is gravely obliged to most exact diligence, so that a defect which in itself could seem slight induces a grave obligation of restitution. Cf. note to n. 661, vol. I.

3º If from malice he omits something in writing, or if he adulterates or badly guards the public tablets committed to him; if he does not append, or does not take sufficient care that there be appended, the due formalities and signatures; if he does not faithfully transcribe testimonies, whether by exaggerating, or by diminishing, or by changing or inverting.

4º If in distributing lawsuits he obeys favor rather than order; if, in order to increase his wage, he makes the acts to be distributed larger, for example, by writing on two pages those things which could have been reported on one.

5º If he betrays a secret committed to him; if he manifests a sentence not yet published; if without the prescription of the judge he shows completed proceedings to the parties.

6º If he gives the 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 dispatch is held of no value. - St. Ligorius, n. 229.

20. • A notary, or tabellion, is said to be one who is constituted by legitimate authority to write acts or public instruments, which have credibility both in court and outside court.

Hence it appears how great is the importance of the office of notary, how widely it extends, and by how grave obligations it is bound. Therefore notaries must enjoy knowledge equal to this office, uncommon perspicacity, and especially outstanding fidelity, prudence, and probity. For since they must handle business and contracts of every kind, from their negligence, ignorance, and defect of attention the greatest evils can follow for society, and damages for the parties.

21. • Notaries are unjust especially in the following cases:

1º If they are ignorant of the things which pertain to their office, and therefore do not make instruments rightly; if, with detriment to the contracting parties or others, from negligence they omit necessary solemnities, for example, to employ suitable witnesses, to append signatures, to indicate the day, month, year, etc.

2º If they make a false, usurious, or unjust instrument; if to the damage of another contracting party or a third party they feign in the instrument those things which are not; if they append false notations of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they make 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.

3º If they do not describe faithfully the wills of the contracting parties, or by ambiguous drafts furnish occasion for lawsuits and injustices; if they do not warn the parties about clauses which can harm them, or about difficulties which can be born from them. For they are bound to these things from quasi-contract with the parties.

4º If they write falsely that a sum has been paid before them or previously, with damage to the other party or 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.

5º If they negligently guard acts and instruments with danger of damage to the parties; if they delay the dispatch of instruments in order to extort money; if they commit something to a copyist with danger of error.

6º If they change something in the protocol (la minute), from which some right is violated or impeded; if they admit false witnesses; if they do not exhibit, or conceal, or deny a transcript of, some necessary testimony to their client.

7º If they communicate acts to others than the parties; if by their fault they lose protocols; if they violate oaths or secrets; if to the sayings or deeds of the parties, or to the testimonies of witnesses, they add or subtract something; if they do not transcribe all things sincerely, just as they stand.

8º If they neglect to watch over their ministers, and for that reason instruments are badly made; for notaries are bound to answer for all the ministers whom they employ; if they sign instruments made either by other notaries or by their own ministers before they have diligently reviewed them and have had perfect knowledge of the things contained in them; likewise if, where several notaries are required, they have declared absent ones as present.

9º If they ask a price beyond the tariff or approved custom ², or if they amplify writings, or write in a larger or more extended character, so that the number of pages is notably increased; if they prolong business to be handled for the sake of increasing the wage.

² Compare the things said above in the note to n. 17.

In all these things, and many other similar things, notaries are bound under grave obligation, of itself, to restitution, as unjust damagers or cooperators, as is plain from what was said in the Treatise On Justice and Law. - St. Ligorius, nn. 230, 234.

22. Questions. - QUESTION 1º. Is a notary bound to restitution toward the fisc if, in making an instrument of sale or of inventory, at the request of the parties, or even with himself hinting it, he does not inscribe the true price of the thing, but another lower one, so that the tax to be paid may be diminished?

Resp. It is disputed. Some affirm, because thus he cooperates in the defrauding of taxes, which is iniquitous and unjust on the part of a magistrate to whom the Republic entrusts confidence. Others deny, provided that at least the lowest price is reported in the authentic writing. Others finally excuse him totally, because from custom generally received even among the upright, the whole price, even the lowest, is not customarily declared, but only a little beyond the middle part is declared, or around two thirds of this price. But if the parties do not sin by dissembling the true price, neither does the notary sin by cooperation; for he is not constituted, like one set over customs duties, to exact taxes, but to make instruments.

23. • QUESTION 2º. Does a notary sin who makes instruments on Sunday or on a feast day?

Resp. From a custom now general they can make whatever instruments, provided they do not pertain to contentious jurisdiction, that is, to forensic business. Thus they can make an instrument 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 make on feast days ³. This is prohibited not only by canon law, but by civil law itself, even French law. But if a notary made such acts on a feast day and feigned a different assignment of the day, he would sin against ecclesiastical and civil law, and would write a false instrument.

³ Nevertheless nothing forbids the whole context of the writing from being set down on a feast day, to which afterward on a lawful day the signatures and other solemnities are added.