The Notarial Function in Brazil

The office of notary, of the Latin sort, different from the office of notary of the Anglo-Saxon sort, demands this professional to be a jurist, independent and impartial counsellor, who receives delegation from the public authority to concede authenticity to the documents they redact, as instruments of guaranty of the juridical safety and of the contractual liberty.

Therefore, the notarial function is a public function that the notary carries out in a independent way, without being hierarchically included among the employees in the service of the state administration or of the other public organs.

The notary must carry out his function in an impartial way, counselling the parties about the effects the deed to be performed will have in the future. This counselling levels the contractors, independently of the preponderance of the economic power of one in relation to the other.

Integrate the notarial activity:

- to formalise juridically the parties' will;
- to come between in the acts and juridical business that the parties must or want to give a legal form or authenticity, authorising the redaction or redacting the appropriated instruments, keeping the originals and sending out credible copies of its content;
- to countersign facts;

The notary is incumbent on:

- to draw up legal documents and public notarised power of attorney;
- to draw up public testaments and approve the 'closed testaments';
- to draw up notarials,
- to notarise signature;
- to authenticate photocopies;
- to carry out all the related acts with the exchange protest;

The delegation for the employment of the notarys function is granted by the Public Authority, after the candidate to be graduated in an University of Law and to be submitted to a public contest of titles and tests.

The approved candidate in the first place in this public contest will get the delegation to work in an unique city, he can't perform any kind of deed out of it. Thus, a public legal document drawn up by a notary out of his city is null and void.

Although the delegation is non-transferrable to third person, the notary is able to designate substitutes to answer for the functions during his absences and when the titled person is impeded. This substitute can practice simultaneously with the notary all the deeds of the respective notarial service, except to draw up testaments.

The notary is responsible for the damages that he and his employees cause to a third person, during his employment.

The notary is impeded of perform the advocacy, too intermediate his obligations or perform duty office, a job or public function.

His profession is remunerated by the person who utilizes him, paying him emoluments for the required deeds. The emoluments are set by the Legislative Assembly of each state.

The table of emoluments, has the fee used in each notarial deed and must be placed in a public place, for awareness of all the users.

The competence for the supervision of the notarial deed is given to the Judiciary Power.

The entity that congregates the notaries is called Notarial College, civil society of private law that co-operates with the Public Authority in the improvement of the notarial service. The Notarial College is affiliated with the International Union of the Latin Notary (IULN), with seat in Buenos Aires and administrative office in Rome.

The IULN is a nongovernmental organization, of which take part in, 62 countries today, constituted to promote, co-ordinate and develop the notarial activity in the international field of action.

The integration of the Brazilian notaries in relation to other countries is very important, permitting that we know here in Brazil which difficulties a person will find to carry out a business abroad.

Referring to the constituents countries of the Mercosul (Argentina, Brazil, Paraguay and Uruguay), there is a protocol signed among the respective Notarials Colleges fixing criteria for the change of information relatively to the demanded requirements by the respective countries for the fulfillment of the notarial deeds. The inquiries to access such information can be done gratuitously through the phone/fax 55 51 224.1383, in Brazil, or in each seat from those countries.

The notarial organization in Brazil is very new, comparing to the other countries which have legislation and secular tradition in this professional activity. France, for instance, is going to commemorate on March 16, 2003 two hundred years of its basic law of notarial organisation - called Law 25 Ventôse XI.

The oldest historical reference in the Portuguese legislation is from January 15, 1305, when D. Denis instituted the Notaries' Regiment.

Unhappily, the notarial function was transformed in the course of the centuries in exchange currency to benefit some friends of the Supreme ruler from that time, that was only changed in some countries since the 19th century, with the advent of the legislation, establishing the necessary requirements for the employment of such an important social function.

In Brazil-Colony, the public appointment or promotion in the duty office was the result of donation as a lifelong right. Later happened some cases of buying and selling of the post.