When a notary makes a mistake
Notaries play a decisive role in the German legal system, ensuring the smooth execution of contracts and other legal transactions. Their work spans a broad range of tasks, from notarising property purchases to authenticating wills. Although notaries are regarded as trustworthy public officials, they too are not immune to human error or breaches of duty. In such cases, what is known as notary liability comes into play.
Notary liability is an important aspect of German law and concerns the legal responsibility that notaries bear when they fail to perform their official duties properly. This can have wide-ranging effects and enormous consequences for those who rely on their services.
Below you will find a few practical examples that illustrate the significance of notary liability:
1. The flawed property purchase contract
Suppose you have signed a property purchase contract in which the purchase price is stated incorrectly, and this error initially goes unnoticed, so that the purchase is completed as planned. Only after some time do you realise that the contractually recorded purchase price deviates by a substantial amount from what you actually paid. This discrepancy could then lead to financial inconvenience and uncertainty.
In such a case, notary liability could come into play. If it can be shown that the notary breached their duties by notarising the contract incorrectly, and that this error caused financial loss, you may be entitled to compensation.
2. The neglected duty to advise
You have drafted a will and wish to have it authenticated. However, the notary does not adequately explain the consequences of certain clauses contained in the will. This can mean that your heirs later face legal problems.
3. Failure to verify statutory requirements
You wish to set up a company and require notarially certified articles of association. However, your notary does not carefully check the statutory requirements for the articles of association, and you later end up in conflict with the authorities.
These examples make clear that notary liability can have far-reaching effects on a variety of legal matters. The legal consequences of notarial errors can be manifold, ranging from financial losses to legal disputes.
Below we explain the requirements for liability, discuss possible claims for compensation, and show you how legal support can help you successfully enforce your claims.
What is notary liability?
Notary liability concerns the legal responsibility that notaries bear when they fail to perform their official duties correctly.
Requirements for notary liability
To assert notary liability, several factors must be met:
1. Breach of duty by the notary: It must be shown that the notary failed to perform their official duties properly. This may include the incorrect notarisation of contracts, the neglect of duties to advise, or the disregard of statutory provisions.
2. Damage: There must be demonstrable damage attributable to the notary’s breach of duty. This damage may be financial in nature, but non-material losses can also play a role.
3. Causation: There must be a demonstrable link (causation) between the notary’s breach of duty and the damage incurred. This means that the damage must be traced directly to the notary’s acts or omissions.
4. Fault: In some cases, fault on the part of the notary must also be established. This means that the notary must have committed the breach of duty intentionally or negligently. However, there are also cases in which liability can exist without fault on the notary’s part, for example in the breach of the duty to advise.
5. Limitation periods: Claims arising from notary liability must be asserted within certain limitation periods. These periods vary depending on the type of breach of duty and should be observed carefully, as claims may otherwise lapse.
6. Burden of proof: The burden of proof generally lies with the injured party, who must show that the above requirements are met.
Where a breach of duty has been established and damage has occurred, claims for compensation can be asserted against the notary.
Notary liability can, in certain situations, be a complex matter. Legal support can help you to enforce your claims for compensation effectively and to protect your legal interests. As experienced lawyers for notary liability, we can guide you through the entire process and ensure that your rights are properly represented.
