Rechtsanwältin und Notarin

Nicole Stütelberg

Fachanwältin für Strafrecht

Violenstraße 39
28195 Bremen

 

Attorney at Law

Notary Public

Certified Specialist for Criminal Law

 

Telefon: +49 421 3345666

Mitglied des Vorstandes

Listed as attorney and notary public by the Embassy of the United States of America Berlin and the Consulate General in Frankfurt am Main.

Listed as attorney and notary public by the Embassy of Canada Berlin.

Mitglied der Arbeitsgemeinschaft Strafrecht des DAV und Mitglied der Arbeitsgemeinschaft Anwalts-notariat im DAV

Mitglied der Deutschen Notarrecht-lichen Vereinigung e.V.

Notary Public in Germany

The German Civil Code (BGB) provides for the necessity of a legal transaction to be notarized in several instances. Although the German word “Notar” or “Notarin” is translated in English to “notary public”, a German Notar is much different, in terms of legal powers, qualifications and responsibilities to a notary public in common law countries. It is only a notary public who may legally notarize a transaction; no other profession is able to do so validly. Notarization in these cases is necessary regardless of whether the parties have been already advised by attorneys, or are actually represented by attorneys or not. In the first place transactions that are economically important and may be dangerous and risky for one or both parties have to be notarized. Here the aim of the requirement of notarization is primarily to alert the persons involved in the transaction, to prevent hasty behaviour, to provide for independent and impartial expert counselling and protection of the weaker party. Examples for such transactions that have to be notarized, are especially prenuptial and postnuptial agreements (§ 1410 BGB), inheritance contracts, the promise to make a gift or the transfer of one’s whole actual estate or a fraction thereof. The second group encompasses transactions that have to be publicly registered later, such as any transactions concerning real property that are registered in the Land Register (Grundbuch= that is endowed with public faith, as well as especially transactions concerning companies that have to be registered in the Commercial Register (Handesregister). In this latter group above, the aim of the necessity of notarization is providing clear evidence and proof of the transaction and its content. This list of cases, in which German law compels notarization thus indicates the special role that is attributed to these professionals that is clearly above and beyond that which is expected of attorneys.

 

The notary public is an independent holder of a public office (§ 1 Bundesnotarordnung – BnotO – Federal Regulations for Notaries). He or she is given this authority by the State. He/she is exercising sovereign functions. Thus he/she is close to the judiciary and clearly distinct from an attorney. To that extent, a notary’s authorizations are more far-reaching than those of an attorney-at-law (§ 2 BNotO). Only German citizens who have been qualified to hold judicial office in accordance with the German Law of the Judiciary (§ 5 BNotO) an be appointed notaries. The personal and the professional abilities of the candidate are carefully scrutinized (§ 6 (1) BNotO): especially independence and impartiality (§ 1BNotO), conscientiousness (§ 14 (1) BNotO), honorableness and correctness (§ 14 (2), 67 (1) BNotO) as well as the ability to advise and to attend to the public in accordance with the standards of the profession (§ 14 (1)). The notary public does not represent any of the parties, but is an independent, impartial consultant for the parties involved (§ 14 (1) BNotO). To guarantee the independence and impartiality, the notary public is appointed for lifetime and his/her income is secured by giving him the right to charge official fees, regulated by statute (§ 17 BNotO).

 

When notarizing a document or statement, the notary public is to ensure that all procedural rules are adhered to. The notary public, before he/she notarizes a document, is obliged to explore the parties’ intent, clarify the facts in the case and instruct the parties on the legal consequences of the transaction and reflect their statements clearly and unambiguously in the transcript. The notary public has to discuss possible solutions with the parties as well as existing doubts and whether the transaction conforms to the law or expresses the true will of the parties. If he/she doubts that the contract reflects the true will of both parties, he/she has to notify the parties (§ 17 (2) BeurkG). If they still insist on notarization, the notary public will be bound to add a note to that effect. This duty of scrutinizing and instructing is one of the core tasks of a notary public. Section 14 BeurKG stipulates that the entire transcript must be read to the parties in the presence of the notary public, be approved by them and signed in their own hand as well as signed by the acting notary public.

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