The role of the Civil Law Notary in electronic contracts
Ugo BECHINI, Michele NASTRI 2004 UINL Congress, Mexico City Italian National Report - Abstract
In the course of 2002, the Italian Notarial Organization set up its own infrastructure for digital signatures, and the National Council acts as a Certification Authority. The operational handbook or Certification Practice Statement, is attached hereto. The goal was to make available a system, entirely controlled by the profession, that would ensure achievement of at least two goals that a commercial certification body would not be capable of achieving.
First of all certainty that the signature device is actually delivered to the notary holder of such device. It is self-evident that the admirable technological features of digital signatures are of no help, in terms of the certainty of juridical relations, unless there are absolutely no doubts that the signature device is firmly in the hands of the holder. In the case of the Certification Authority of the Italian Notarial Organization, the device (in our case a smart card) is physically handed over by the President of the District Notary Council to the notaries, each of whom he knows personally.
The second goal achieved by our system is that the signature is immediately associated with notarial functions. The National Notary Council certifies only notaries who are in office; if a notary has been suspended or loses for any reason his office, the signature is immediately revoked by the District President. This arrangement has a double value in that, from the political standpoint, the principle is asserted according to which, also in the Information Technology area, only the professional bodies are authorized to certify, erga omnes, who is a notary and who is not. And from the operational standpoint, this enables anyone, all over the world, to automatically check and immediately find out whether a document is a notarial document or not. Anyone can access the site (http://ca.notariato.it) which is available in four languages, to make this check; and if the response is affirmative there is an inherent certainty that the document comes from a notary who is in office. This enables the notarial digital document to freely circulate, with full juridical value, in the public sphere, also in the international arena, and activate forms of automatic data transmission with the Public Administrations. Ad hoc software can be used to check the signature automatically, and hence perform the formalities required (cadastral registration, registration of mortgages, registration of companies) without human intervention. Similar procedures on the one hand reinforce the role of notaries, because they attribute the function of sole judge of the lawfulness, correctness and consistency of the data to be entered into the Public Registers, and on the other hand, by relieving the Public Administration from enormous workloads, they are of political interest at a time when cutting back public expenditure is a major imperative. They strengthen the position of the Italian notaries also in the medium and long-term because notaries take on a public function that can hardly be attributed to other categories and which could be taken back by the Public Administration only on pain of an increase in its expenditures. And, last but not least, these accomplishments are the end result of profitable and lasting relations that the Italian Notaries have entertained with the high-tech industry, with which forms of cooperation have been established that ensure and develop the interoperability of IT systems in full respect for regulatory requirements.
At the present time the Italian Notaries affixes some three million digital signatures every year. All notaries were endowed with a signature system between October 2002 and early 2003. The rapidity with which this profession adopted the most advanced IT solutions has contributed greatly to the image of the Italian notaries, which unlike the past is now capable of keeping pace with the times and of providing society and the economy with the timely and reliable services that they need.
All the deeds relative to companies (establishment, winding up, changes) are forwarded in telematic form to the Register of Companies. The speed afforded by IT media is at its best when, as in the case of the Italian system, notaries are attributed the exclusive power to control the lawfulness of company deeds. The notary may therefore receive the deed and forward it to the office for being published without any intermediate waiting time. The procedure still envisages a manual revision by an official, but it is not at all infrequent that approval, especially in the smaller and less busy offices, is received on the same day on which the deed is forwarded. The role of the notarial profession, which in this field is that of guarantor, and at one and the same time that of ensuring juridical certainty and speed of execution, is hence markedly reinforced.
Evidence of this was given on the occasion of the recent reform of Italian company law, which entered into force on January 1, 2004; in the light of the results obtained there was general consensus on preserving exclusive powers that notaries have in the issuing of company-related deeds.
The situation is more complex when it comes to real estate deeds. In this field computerization has not yet been completed because, unlike the notaries, the Italian judicial offices are not yet ready to issue their deeds, that require being published, in digital form (rulings on the ownership of real estate, orders on the seizure of property, and so on), and the Administration does not want to face the complications involved in the parallel management of two interrelated documentary systems. And moreover, the problems related to the preservation of digital documents has not yet been fully solved, which are extremely delicate in the real estate field where it is not rare that a document must be accessible, and with full juridical value, even after many decades. While cadastral registration (and the relevant payment of duties) and the transfer deeds are fully computerized, the Land Registries continue to receive a paper copy of each deed alongside the digital document.
The real estate procedure, called Adempimento Unico (Single Fulfilment), consists in transmitting an XML type of file which contains fields for all the data of the deed that are instrumental for the subsequent steps of the procedure, and also the full text of the deed in natural language. An example is attached to this paper. The notary draws up a single XML file and forwards it to all the public Authorities involved: ad hoc softwares search the files for the data that are of interest and they consequently update the databases. The notary does not need to produce different forms for the individual documents required: it is the deed that is produced in digital form once and for all in accordance with a layout agreed upon by the notary and the Authorities involved. The applications of this technique are then virtually unlimited. At this very moment in Italy experiments are being made with the transmission of data relative to property transfers to the Municipal Administrations. This occurs without any additional work for the notary because the data are retrieved automatically from the single XML file; in any case the profession receives a small but not insignificant recognition in terms of image and services it offers to the citizens since the latter no longer need to comply with the duty of reporting the purchase or transfer of property to the Municipality since all this is done automatically.
In addition, the XML format is a standard in the public arena, and its files, as can be seen from the example attached hereto, are easy to read even in the source format, while this is impossible for most of the other formats. A doc type file, which is typical of Microsoft Word, is for instance substantially inaccessible without the relevant software. Not only: inside the formats owned by individual companies, as occurs with the doc format, the producers conceal in a way that is not always visible for the average user, a series of data like the original author of a given text, the changes made subsequently, and so on. Additional problems are posed by the so-called dynamic fields. Anyone who signs a file of the proprietary type runs the risk of signing unaware (and of spreading) information that he has not examined and of which he potentially knows nothing, something which is absolutely incompatible with the role and function of the notary. It is furthermore unacceptable that documents of public interest be stored in a format which is fully accessible only by having recourse to the products of a given U.S. company, without any guarantee that such products may be available in the future and for all the platforms.
The choice of formats therefore, is not at all purely and simply a technical choice: indeed it has huge political and juridical implications. The problem may be perceived as insignificant so long as automation and word processing systems are used only to produce documents in the traditional form: if only paper has the fidefaciente (i.e. that constitutes full evidence) function, from the juridical point of view there is little interest in knowing what happens inside our computers. But when it is the file that becomes fidefaciente, having direct access to that file, at the present time and at all times in the future, and being able to check its contents with absolute certainty, is a strategic need for notaries.
What is in the making, therefore, is a system which, as a whole, makes the notarial profession the true operator of digital documents in an integrated area of interoperable technologies and applications. Some tesseras are still missing for the picture to be complete. What will the next steps be?
First of all the adoption of document storage systems that ensure that the digital document will exist in time and above all that it will at all times be usable and authentic. The approach taken by the notarial profession to this issue is, as always, twofold:
§ on the one hand the approach to the regulations, which are still in their developmental stage and therefore abound with gaps and antinomies; this is due to the fact that measures on the conservation of digital documents have been issued not to regulate a phenomenon which is under way but to anticipate what was to happen;
§ on the other hand the examination of practical experiences and of the technologies available for conservation, and their development in a way that is consistent with the regulatory, sectoral and general context.
It is clear that the availability of document conservation systems that will guarantee full juridical validity of digital documents produced by notaries, or produced with their contribution, and made available to the community, will be instrumental in enhancing the role of notaries in society and in the relationships with the Public Administration. This commitment is already being implemented and it is expected to be fully completed in the near future.
Secondly the use of digital documents in international relations and in particular with the notarial bodies of the UINL (International Union of Latin Notaries).
The adoption of a standardized signature infrastructure by the notarial bodies of the UINL will facilitate the international circulation of the digital documents produced by notaries. Once the signature has been checked and found to be certified by a UINL notary, there is certainty that the document comes from a notary of Latin background and who fully performs his functions and is hence in a position to implement the juridical efficacy inherent in his office: at that point there are no obstacles in line of principle against that document being accepted at the international level.
However difficulties may arise on two fronts at least, and in several cases the notaries of the individual Countries may very likely have to take action to promote legislative integration. The first difficulty concerns foreign documents which are attributed full juridical value only if they contain a legalization or an apostille, a formality for which a digital equivalent has not yet been found. The second difficulty consists in the problem of transferring the document that arrives in digital form from abroad onto a paper medium: indeed, in various legal systems, a power of attorney needs to be attached to the deed to be stipulated. The notary will have to claim a central role in the latter case, as guarantor of the correct drafting of the digital document and produce paper formats that are to be valid for all intents and purposes. As professional par excellence of the production of deeds, the notary may undoubtedly present himself as figure of reference for all those cases in which a transition is required from the paper document to the digital document and vice versa and where the resulting document must have full juridical value.
In a nutshell: digital signature and IT documentation are not a danger for the notary of Latin background but rather are an opportunity. At the national level they make it possible to draw up faster and more efficient procedures around the role and the figure of the notary, enabling an immediate perception of the contribution that this profession offers to the companies and economies of the Countries in which they operate. At the international level, they are an excellent means for the production of documents that can be transferred instantly through telematics, without losing the juridical value of the notarial document of the Latin type. In both cases the adoption of the most advanced technologies is an excellent confutation towards those who, for their own interest, depict the Latin notary profession as an organizational model that is less suited than its competitors to meeting the needs of our contemporary world.