Notary (Notar)

German notaries (Notare) are highly qualified lawyers who focus their practice on non-contentious private civil law. Their participation is required under German law in certain cases. Specifically, cases involving important agreements with long-term effects and particular economic or personal significance for the parties concerned( e.g. transfer of title to real estate, incorporation of a limited liability company or a public corporation, prenuptial agreements and inheritance contracts) often require the participation of German notaries. Without a notarization, such agreements are void.

The justification for mandatory involvement of notaries is the theory that it protects the parties from rushing into such agreements without first obtaining proper legal advice. Additionally, the involvement of a notary can ensure proper documentation and preservation of such agreements.

In contrast to a German attorney at law (Rechtsanwalt) who is an advocate for his client, a notary is neutral and must comply with the German law governing notarization (Beurkundungsgesetz). Under this law, the notary must:

• Advise all parties involved;
• Ensure that they have understood all the implications; and
• Warn a party if the notary thinks that such party is entering into a disadvantageous or harmful agreement.

German notaries hold public office. Nevertheless, notaries operate typically, but not always, in private practice. The mode of practice depends on the state (Bundesland). In some German states, notaries practice exclusively as a notary (Nur-Notar). In others they are practicing simultaneously as an attorney and notary (Anwaltsnotar). In Baden-Württemberg the notaries are public servants (Beamten-Notar) and are regularly staffed in government agencies and offices. In some parts of Baden, notaries are also competent to issue certificates of inheritance (Amtsnotar).

Most German notaries do not receive a salary from the state. Instead, he or she charges fees to the parties. Such fees are fixed by law (Gerichts- und Notarkostengesetz - GNotKG) and depend on the value of the case.

In case of negligence, a notary is personally liable for all damages caused. Liability insurance is mandatory for all notaries. Furthermore, the regional chambers have established a special fund for damages that are not fully covered by the liability insurance.

All German notaries are subject to the supervision by the President of the competent district court. Negligence and non-compliance with the German law governing notarization or the professional conduct code (Bundesnotarordnung) can also result in disciplinary actions and sanctions. In addition, all notaries are subject to a regular review of their files and their practice by the supervising authority.