Certification is in legal transactions a legal form requirement that certain contracts or documents of a notary in a transcript must be drafted, read by this the parties approved by the parties and by hand in the presence of the notary signed must be. Notarization is the strictest legal formal requirement .
The legal form requirements are an exception, so that legal traffic is not unnecessarily difficult. Therefore, large areas of the law of daily life are free of form, especially the purchase contract . There are, however, some exceptions where the law expressly provides for notarization. Then she meets one
- Validity function : Without notarial certification, the legal transaction is void.
- Warning function : The declarer should be protected from hasty commitments because of the risks of the business and a
- Evidence function : The form should clearly demonstrate whether and with what content the deal came about.
- Advisory function : The notarial certification should also ensure expert advice and instruction of the parties involved and a
- Control function : in exceptional cases, official monitoring can be guaranteed by notarial certification. Certain legal transactions requiring notarization trigger tax obligations on the part of the parties involved (promise of donation: gift or inheritance tax , property purchase agreement : real estate transfer tax ). According to GrEStG, the property purchase contract must be sent by the notary to the real estate transfer tax office with all the conditions immediately after it has been certified.
A complete combination of these functions is not required for every legal transaction.
Usually notaries take over the notarization, but in exceptional cases courts or other notarizing persons are authorized to carry out a notarization. For example, the settlement established by court order ( (6 ) ZPO ) replaces the formal requirement of notarial certification from (3) sentence 2 BGB , BGB. A notary at the Youth Welfare Office is authorized to document the contracts listed in Book VIII of the Social Code ( e.g. paternity , maternity ), and suitable civil servants and employees are to be authorized by the head of the office to perform these tasks .
The legislature has made particularly risky or legally complicated legal transactions subject to a notarial certification obligation, so that by involving a notary both parties benefit from advice and legal risks can be excluded from the outset. The notarization process is comprehensively regulated in the Notarization Act (BeurkG). In a hearing before the notary, the parties involved declare their will to be notarized ( BeurkG), which, after the notary has been instructed, is recorded, read out, approved and signed by the parties and the notary personally ( , BeurkG ). As part of the instruction , the notary, as a legally qualified person, has to research the will and the goals of the parties involved, to inform them comprehensively about the legal dangers and the legal consequences of the notarization ( advisory function ) and to formulate the regulations clearly and conclusively ( evidence function ). The notary has to show the parties involved ways in which risks can be avoided. The notarial deed is a public deed , i. i.e., it provides full evidence of the certified statement or fact. The original document ( original ) remains with the notary, who records it in his deed . For legal transactions he issues enforceable copies or certified copies to the parties involved .
Legal transactions that require a form
Legal transactions that require notarization are finally listed in the laws. This includes
- the land purchase contract ( (1) BGB),
- the obligation to transfer property in full ( (3) BGB),
- the promise of donation ( (1) sentence 1 BGB),
- the contract on the compensation claim from the equalization of profits ( (3) sentence 2 BGB),
- the marriage contract ( BGB),
- the declaration of custody ( BGB),
- the disposal of an inheritance ( BGB),
- the public will ( BGB),
- the inheritance contract ( BGB),
- the inheritance waiver contract ( BGB),
- the inheritance purchase ( BGB) or
- the assignment / pledging of company shares in a GmbH and the underlying obligation under the law of obligations ( (3) GmbHG; only the assignment is regulated here).
Some corporate law contracts (establishment of the AG according to company contracts according to (2) sentence 1 GmbHG, merger agreements according to UmwG or resolutions of the general meeting of an AG according to (1) AktG ) are to be notarized.(1) AktG, GmbH according to GmbHG;
A mortgage and land charge must only be notarized if the mortgage holders (mostly credit institutions ) demand the immediate submission of the owner to foreclosure ( (1) ZPO). The notarized enforcement submission is a unilateral procedural declaration of intent aimed exclusively at the creation of an enforcement title, which is only subject to procedural principles. It is not aimed at a change in the material legal situation, has no material legal effects and therefore remains unaffected by the ineffectiveness of the material basic transaction documented with. If submission is not intended, notarial certification is sufficient. Conversely, the extension of the security purpose of an enforceable land charge is effective without any formal requirements, since it is not a matter of changing the notarial declaration of submission. If the debtor submits to foreclosure for other purposes (e.g. in the context of a guarantee or a constitutive acknowledgment of debt ), the obligation to notarize is also triggered.
As a rule, the written form requirement is sufficient for the will . A public will, on the other hand, needs to be authenticated in writing by the notary, so it does not have to be written by the testator himself ( BGB). The public will is particularly advisable if there are complicated inheritance provisions. It is sufficient if the testator can clearly say “yes” or “no” after reading out the notarial record. However, this provision must not prevent persons who are capable of making a testament and who can neither write nor speak from the possibility of making a will. For people who cannot write due to a lack of school education or physical disabilities, the option of handwritten wills (§ 2247 BGB) is ruled out; they only have the option of drawing up a notarial will according to §§ 2232, BGB.
The law attaches an essential legal consequence to the notarization requirement. If the required certification is lacking, the concluded contracts are void due to a lack of form ( BGB), so they do not have any legal effects from the start. There are only a few exceptions to this rule, for which the legislature expressly provides for a cure through fulfillment or execution . The non-authenticated land purchase contract is to effectively para. 1 sentence 2 BGB if the conveyance and registration are done in the land register. The promise of donation is valid if the promised service has been provided voluntarily ( (2) BGB). According to (2) BGB, this also applies to the promise of donation upon death. A non-notarized obligation to assign / pledge a GmbH share becomes effective if the assignment takes place with notarial certification ( (4) GmbHG).
Notarization by a foreign notary can be problematic under German law. The prerequisite is that the foreign certification is equivalent to the German one. Equivalence means that the foreign notary, with previous training and position in legal life, performs a function corresponding to the activity of the German notary and has to observe procedural law for drawing up the deed that corresponds to the basic principles of German notarization law.
Notarizations in Switzerland
The Swiss Civil Code (ZGB) has not defined public authentication as a special procedure or the associated qualified form of written form, but has prescribed it for the most important legal transactions. This form is required above all for marriage and inheritance contracts , for the transfer of real estate , for the establishment of most personal easements , the establishment of foundations , for independent and permanent building rights and easements regarding the lifting or modification of legal property restrictions (from January 2012 for all personnel and real easements), for the contractual establishment of mortgages (from January 2012 also for owner bonds), for the establishment of legal entities ( trading companies and cooperatives ) and for the amendment of statutes. According to final title ZGB, the regulation of the public notarization lies with the cantons , which in particular determine the persons who may undertake public notarization. In the French-speaking cantons and in the canton of Ticino , this task is the responsibility of the freelance notaries, in the German-speaking cantons there are different systems that have grown out of a long tradition, in some cantons there is still a pure state notary , for example in the canton of Zurich .
In Switzerland, legal entities are divided into public and ecclesiastical on the one hand and civil law on the other. The latter are partly regulated in the Civil Code and partly in company law. There is a closed number of forms available (= compulsory form), the free content of which is limited. Legal persons are the association , the foundation , the stock corporation (AG), the limited partnership (Kommandit-AG), the limited liability company (GmbH) and the cooperative.
For the creation, amendment of the articles of association and the liquidation of legal entities , the legislature has set certain formal requirements:
- The association acquires its personality through statutes, which were passed in the framework of a founding meeting ( ZGB).
- Like the association, the cooperative is established by the founders ( OR ) and changed by the shareholders' meeting ( Paragraph 2 Item 1 OR).
- The foundation is established by public deed or by disposition upon death. Changes will be implemented by the competent authority after hearing the highest foundation body, as will the repeal ( ZGB and ZGB).
- For the establishment, amendment of the articles of association and liquidation of corporations, therefore the AG ( and OR), the limited partnership ( para. 2 OR) and the GmbH ( and OR) it of public notarization. There are a few exceptions to restructuring, such as the merger under Art. 23 FusG.
Form of the certificate
Public certification in paper form
According to current law, the original of the public deed - the written result of the main proceedings carried out (also called “original” in the terminology of many cantons) - must be created as a paper document. With digitization, the notarization of foundations and changes to the statutes of AGs and GmbHs are increasingly computer-controlled. In the preparatory phase, in which customer advisors and notaries regularly exchange information about the document text, there are now tools with which the establishment and amendment of the articles of association of corporations can be worked out using a standardized process.
Public authentication in electronic form
The Federal Office of Justice proposes de lege ferenda to take the consistent step towards complete electronic public authentication. It is already possible under the current Art. 55a SchlT ZGB that cantons can authorize notifying persons to issue public documents and notarizations in electronic form. However, this still requires that the notarization act is in paper form. The notarized documents are then to be scanned and in accordance with the provisions of the implementing provisions in the Ordinance on the Creation of Electronic Public Documents and Electronic Certifications (EÖBV) of December 8, 2017 (as of February 1, 2018; SR 211.435.1) and in the Ordinance of the FDJP on the creation of electronic public documents and electronic notifications (EÖBV-FDJP; SR 211.435.11) dated December 8, 2017 (as of February 1, 2018) saved as PDF / A in a special scan process and saved in the register of notaries The qualified electronic signature of the notary must be provided by the federal government. The future regulation should dispense with this complex intermediate step, whereby the electronic public notarization and electronic authentication should take place completely electronically.
Content of the certificate
Cantonal law regulates the requirements for public notarization. With a view to the notarizations in connection with legal persons, this is understood to mean the recording of event-related declarations regarding the establishment and capital increases with reference to the prevailing doctrine. Certifications of amendments to the Articles of Association are to be formulated as certifications of facts that come about in the context of shareholders and shareholders' meetings. The deed usually contains a header, an introduction, a description of the establishment or the other business and the final deed.
In Austria , the state-appointed notaries are authorized to issue notarizations in accordance with Section 76 of the Notariatsordnung (NO). This finally includes the certification of the conformity of paper copies (paper copies) with paper documents, the conformity of paper copies with electronic documents and the conformity of electronic copies (electronic images, electronic copies) with paper documents (vidimension), and the correctness of translations , about the authenticity of signatures (legalization) as well as the authenticity of the writing, about the time at which documents are presented, about the life of persons, about the publication of declarations and the delivery of documents, about deliberations and resolutions, about bill protests and others corporate securities, about other actual processes, about entries in public books and such registers, about facts that result from public or publicly certified documents or from files of courts and administrative authorities and about other facts en due to special legal regulations. According to Section 79 (5) NO, the notarization takes place by stating the transaction number in the notarization register, the first and last name of the party, if applicable their date of birth, the confirmation of the submission of the declaration by the party and the confirmation of the authenticity of the signature (company signature) or the Hand sign.
- Julius von Staudinger (greeting), Christian Hertel (editing), Sebastian Herrler (editing): J. von Staudinger's comment on the German Civil Code: Staudinger BGB. Book 1: General Part. §§ 125–129; BeurkG: Formal requirements AT; Notarization . Revised 2017. Sellier-de Gruyter, Berlin , ISBN 978-3-8059-1226-6 .
- Wolfram Waldner: Notarization law: for notarial practice . Schmidt, Berlin 2007, ISBN 978-3-503-10353-9 .
- BGH, decision of February 1, 2017, Az .: XI ZB 71/16 = BGHZ 214, 45
- BGH WM 1998, 783
- BGH WM 1996, 1735
- BGH NJW 1990, 258
- BGH WM 1996, 1735
- BGH ZIP 1997, 1229
- BGHZ 37, 79 , 84
- BGH, decision of December 17, 2013, Az .: II ZB 6/13, Rn. 14 = BGHZ 199, 270
- See the overview of the formal requirements for the various transactions in the law of the AG and the GmbH: Lukas Müller / Lara Pafumi, The digital public document in the context of the AG, REPRAX: Zeitschrift zur Commercial Registerpraxis, 22 (2020), p. 45- 82. May 5, 2020, accessed May 5, 2020 .
- Federal Act on the Creation of Electronic Public Documents and Electronic Certifications (EÖBG). Federal Department of Justice and Police FDJP, December 11, 2018, accessed on September 18, 2019 .
- Lukas Müller / Lara Pafumi, The digital public deed in the context of the AG, REPRAX: Journal of Commercial Register Practice, 22 (2020), pp. 45-82. May 5, 2020, accessed May 5, 2020 .
- Christian Brückner: Swiss Notarization Law . Schulthess Verlag, Zurich 1993, ISBN 978-3-7255-3159-2 , p. 835 .
- Christian Brückner: Swiss Notarization Law . Schulthess Verlag, Zurich 1993, ISBN 978-3-7255-3159-2 , p. 845 .