CHAPTER IV: ON THE OBLIGATIONS OF SCRIBES AND NOTARIES

I. On scribes or secretaries.

1068. • A scribe or secretary (clerk of the court) is he who reports in writing the testimonies, the sentences of judges, and all the rest which are transacted in tribunals. Hence he is usually considered as the right hand, as it were, of the judge, and his public and authentic secretary.

But a scribe can commit various injustices, especially:

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

2° If he does not use serious and constant attention for reporting into the authentic books all things uttered 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 on the part of secretaries?

3° If from malice he omits something in writing, or if he adulterates or badly guards the public tables committed to him; if he does not place, or does not sufficiently strive to have placed, the due formalities and signatures; if he does not faithfully transcribe testimonies, whether by exaggerating, or diminishing, or changing, or inverting.

II. On notaries.

1069. • A notary, or tabellion (Notary, Notary public, Conveyancer), is called he who is constituted by legitimate authority for writing public acts or instruments, which may make faith both in judgment and outside judgment.

Hence it appears of how great moment the office of a notary is, how widely it extends, and by how grave obligations it is bound. Therefore notaries must enjoy knowledge equal to that office, more than common perspicacity, and especially eminent fidelity, prudence, and probity. For since they must handle affairs and contracts of every kind, from their negligence, ignorance, and defect of attention very great evils for society and damages for the parties can follow.

1070. • Notaries are unjust especially in the following cases:

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

2° If they compose a false, usurious, or unjust instrument; if to the damage of another contracting party or of a third they feign in an instrument those things which are not; if they place false annotations of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they compose acts which exceed their office, or if outside the territory assigned to them they exercise their ministry: for then their acts are void ipso facto.

3° If they do not describe faithfully the wills of the contracting parties, or through ambiguous compositions furnish 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 a quasi-contract with the parties.

4° If they falsely write that a sum has been paid before themselves or already before, with damage to the other party or to a third; likewise if they easily write such things, gravely suspecting that they are being deceived by the contracting parties; for then they cooperate with their sin.

5° If they guard acts and instruments negligently with peril of damage to the parties; if they defer the expedition of instruments so that they may extort money; if they commit something to an amanuensis with danger of error.

6° If they change anything in the original act, whence 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 own client.

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

8° If they neglect to watch over their ministers, and on account of this the instruments are badly composed; for notaries are held to answer for all ministers whom they employ; if they sign instruments composed either by other notaries, or by their own ministers, before they have diligently reviewed them and have had perfect knowledge concerning the things which are contained in them.

9° If they ask a price beyond the tax or approved custom, or draw out the affairs to be handled for the sake of increasing the salary.

In all these, and many similar matters, notaries are held under grave obligation, of themselves, to restitution, as unjust damagers or cooperators, as is clear from the things said in the Treatise on Justice and Right. - St. Alphonsus.¹