Anglais Juridique - Cours CM PDF

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Anglais Juridique Question de cours et essai et 1h. Notaries or Notaire? Many differences between the two. Here this is Notaire, there is no equivalence in english. There are two differences way to do laws : - Civil law (roman law). You right law and you applie it. - Common law Notaires as we know it : South America, Europe, Asia and a piece of Africa. In the USA, UK and Canada (except the French part : Québec, the same in Africa), there no notaire. UINL : Union Internationale du Notariat Latin : this is a world association, in English : the international union of Notaries. They do all the administration in Latin languages, it do not exist in the US, UK and Canada. This is an umbrella organisation for all the publicity authoriser notaries on the world. The goal is to develop the civil law in the world. They promote, coordinate, and develop the civil law notary worldwide. The common law is based on the case law. Every case being decided by a judge, form a precedent for the future decision. Civil Law is based on statute law, every thing needs to be written by the law makers. In England a Notaire is a public notary, this person have to refer directly to the public law, not the law decided by the judge. A public notary is a public officer, this person is employed by the states. This people have tree missions: - They administers oaths (serment) and affidavits (deposition sous serment) - They have the power to certifies certain documents - They do an authenticates signatures (by the book: dans les règles de l’art) A public notary in England: also a public officer who certifies and authenticates documents and signatures. They are qualified lawyer. They are abled the pleed behind a court. The French notaire is somewhere between the US Notaire and the UK notaire. They are generally a solicitor (avocat). How to translate “un notaire”: there is no translation, explanation: I am a civil law notary, I work as a solicitor in some legal fields. Major difference : rights of audience, that not exist for the French notaire.

Part 1: Who is a French notaire 1. Definitions This is a well known job, who make good money, serious people. Anyone is his life will have to deal with them (loosing someone, buy a house, etc.) in the French system, au Notaire is a sworn public officer. There are legal professional with a public authority mission. There are not lawyer. A Notaire in France have guarantees the validity and enforceability (mise en

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application) of the deeds (les actes), all the deeds they will draft for the clients have to be guaranteed. Rédiger un acte: to draft the deeds The prerogatives of the French notaire: article 1, order Novembre 2nd 1945: “Notaire are public officers authorised to record any instrument or contracts the parties to which are obliged, or may wish, to invest with the type of authenticity associated with public authority instruments.” Authentic instrument: is drafted and recorded by any person who as public authority. That means the Notaire, any people who work in a court. Drawn up by a person with public authority notarised deed. The document immediately becomes authentic, this is the probative value, the document can’t be questioned. It can be enforced immediately. To execute a testament, there is non need to go to a court because the draft of the notaire is authentic. The notaire is a “deed-authentication professional” any deed recorded by the notaire is authentic. The notaire as to signed, it need e authentic seal, and the signatures of the clients. 2. Training and appointment To become a Notaire, you have to go to the university, this is the usual way to do it. Some people who want to enter in the profession, they have to justify there technical knowledge , they will take a 2 year in house training, if they pass the exam, they get a diploma. The classical way, after the Bac, the university with a 3 year law degree, after that, you take a master degree where you specialise which take 2 year. You get a vocational postgraduate degree, that means you are looking at a job. After the 2 year, you are starting a vocational stage, this stage is 2 year and you will be supervised. At the end of this training period, you have to presenting an essay to have the DSN. It is a superior degree of French Notary. Professional possibilities: you may become a deputy notaire (notaire assistant), or a Sole notaire (notaire indépendant) nominated by the French ministers (le garde des sceaux: keepers of the seals), a salaried notaire, or a partner notaire (notaire associé). A notaire’s office: the offices are established all through the French territory according to a zoning system, to make sure there is notaire everywhere. The justice ministry establishes this system. This system is reviewal on an ongoing basis. The French central administration of justice is in charge of that. The Chancellerie is made of several department. The Chancellerie is responsible for monitoring the profession, examining files appointing notaires setting up, founding and closing offices. The Chancellerie work with the CSN (Conseil Superieur du Notariat). All of this haves to answers to some rules of quality. Everything a notaire does have to be regulated. If we compared the formation of a French notaire to an English one, there is not a lot of different. It takes 3 to 4 years to university. It starts with the same way, - a law degree - or a non law degree + the common professional examination (CPE) or Graduate Diploma in Law (GDL) There is a vocational stage : first le LPC (legal practicing court) and for 2 year a training contract in firm. At the end of the training session, there is an admission ceremony. Translation

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1- Aux Etats Unis les notaires sont des fonctionnaires abilities à faire prêter serment et à recevoir des depositions sous serment In the US, public notaries are public officers authorized to administer oaths and affidavits In the US, public notaries are oath and affidavits administers. 2- Le notaire a le pouvoir d’authentifier des documents The notary has the power to authenticate documents 3- Le notaire est un juriste avec une mission d’autorité publique, qui agit au nom de l’Etat. Notaries are legal professionals who hold a public authority mission and act on behalf of the state. 4- Le notaire enregistre les actes qu’il a rédigés pour ses clients. Une fois enregistrés, les actes sont jugés authentiques, ce qui veut dire qu’ils on tune valeur probante et peuvent être executes. Notaires record the deeds they drafted/drawn up for their clients. Once recorded, the deeds are deemed authentic, that is to say they have probative value and may (can) be enforced. 5- Les etudes/ offices notariales sont réparties dans le pays selon un système de decoupage territorial géré par le Ministère de la Justice. La Chancellerie assure le suivi de la profession ainsi que la création et la cessation d’activités des offices. Notaire offices are located throughout the country according to a zoning system managed by the Ministry of the Justice. The Chancellerie monitores the profession as well as the creation and clothing of offices

3. Legal responsibility Freelance practitioner: both responsible for what you date: the content, the date and the activity. You are responsible for the economic to. The first duty: to provide legal advice. Contrary to the public officer, Notaire is liable for legally and financially. If you draft a document and you make some mistake, you will have to pay some domages to the client. The government does not pay the notaire, or the taxes, he or she is played directly by the clients. Notaire fees are decided by the state. Notaire is self-employed, he or she is their own boss. Everything a Notaire do is decided by the state, everything is controlled; this is the ethics of the Notaire. Ethical Rules Integrity as to be (assurée). A notaire have to find a notaire, but you can not make any publicity to get them. So as a notaire, you have no right to canvers (démarcher). This is very well controlled.

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There is a High Council of French notariat. Created in 1945, this is a public-interest organisation. It will represent the notaire behind the French authority. They represents the profession to the public authorities. There determines the profession’s general policy. They are responsible for the profession. And they contribute to the developments of the profession. They report to the department, the notaire are organised as level department, and report to the state persecutor.

Liability and insurance: It means there is a lot of pression on the profession as notaire. Every mistake are the notaire’s mistake. The joint and several liabilities: you are always support by the rest of the notaire, there is an insurance that cover each of the them. Financial cover born by the notaire’s insurance company. They is an other insurance : the regional guarantee fund. Every notaire’s can count on a global found wich is made by the notaire. They although have the central guarantee fund. A French notaire knows that he will have tree kind of aid. There is a team spirit. Comparaison with English solicitors: The law society is created in 1845, it situed in London at Chancery Lane. They represent all the solicitor in UK and act as a Trade Union (syndicat). They support the profession, and they held young solicitor. They act as a regulator, this people are in charge of dealing with the bad things. The English solicitor, as the French notaire a liable to disciplinary proceedings, they can be sanctioned. They are liable to an action in damages, he can be suite to a court. This can happened in cased that they made a professional mistake when they plead behind the court, they are liable for their advocacy. Negligence is a professional mistake (out and in the court). He can be suit in case that the contract is not (rempli). Griffiths v Dawson (1993) : solicitors for the plaintiff failed to make the correct application in divorce proceedings against her husband. She suits the solicitor for negligence in the court and she won. As a result, the plaintiff lost financially and the solicitors were ordered to pay her £21, 000 in compensation (that damages).

4. The notaire’s missions They appear in every area of law, that represent a lots of knowledge (property, family, succession, company, etc.). “Notaires are public officers appointed for administering the instruments and contracts the parties to which must or wish to grant the authenticity associated with public authority instrument and for guaranteeing the date filing/archiving them and issuing engrossed or duplicated copies’. - Family matters Notaires always was in charge of the family matters. It represents 26% of the activity. Notaires works as family advisors and they must be able to provide appropriate solution to anything for divorce, adoption, and marriage. Inheritance included will (testament). It is

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drafted by someone, which is alive, for the moment when he will died. A will can be changed at any time when the person is still alive. The will only speak at the death. In England, there is no obligation to be equal between the children. In England you can desherites a child. A will: declaration drawn up by a person in his life-time of his intentions concerning the devolution of his property after his death. In England there are witness to authenticate the document the certified that the person is sain. Probates is succession, sometimes people don’t have a will. It can be contentious or not. The notaire have to take care about the inheritance tax (succession duties). Inheritance tax , french, the state applies a tax to the succession. When people are alive, lots of them gives money to there children, but there is no way to escape the tax. In some country there is no succession tax (Canada, Australia, etc.). When people get married, they can make a pre-nuptial agreement. If they don’t do it, everything you have, you (partage) with the other one. They drafted Civil Solidarity Pact, and any kind of marriage contracts (at any time during the marriage). Other things: adoption: simple or full adoption (the child becomes legally yours and as the same right than your other children). Inter-vivos distribution. In England: gifts between anyone (in general in French: between parents and children and become illegal). Gifts can be general or specific (one object that have financial or emotion value), demonstrative (this one comes from a specifies somme of money from a specifies count), or residuary (you gives everything after all the dettes have being paid). Divorce settlements : notaires are confronted more and more to this type of work. Divorce settlement as differents form: - By mutual consent (the two part agree on the fact that they want to divorce, the child (garde des enfants, etc.). - Following irrevocable damage to the conjugual bond - Contested or hostile divorce (one of the part contest the divorced, one don’t want to divorce). Family partnerships: société civile familiale (a man and a woman get married and have the same company). Notaire are also in charge of asset management. Last one: people are getting older and someone have to take care about them. Legacy: every ting you gives to people in a will (for money). Legacy can o from 0 to everything. A gift of personal property effected by will. Bequeath : léguer. Inheritance: devolution f property on the death of the owner(succession). Property that a beneficiary receives form the estate of a deceased (to decease: déceder ou to pass) person (heritage). (le defunt: the deceased) (feu Mme: the late Miss). -

1.4.2 -Real estate and property issued

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This is 49% of the French activity. Patrimony: patrimoine. It depending how reach the person is. Patrimony concern: movables (meubles) and immovables (immeubles). All of this, if its big enough, will be tax by the state (solidarity tax on Wealth: impôt sur la fortune). The buyto-let law: you buy an apartment and you are renting. The ideas is that if you do it, you paid lass tax. Overseas investment (investissement à l’étranger): taxes are interesting. And bequeathing assets. Trusts: transfer of property to one trustee or more (people who are incharge of the property still when the people concern are in age). The trustee have to take care of the money and don’t use it, and have to transfer the property. Viager: contract agreed between two private parties and overseen by a notaire a form of gamble. Conveyancing: Assesment of property transfer of property: include assessment of property. The notaire is supposed to give an independent value of the property. Notaire mad negotiation of property sales. Dafting of several document. Formalities before and after. Capital gains tax on property. Housing: a house built, renting (deposit and lease), commonhold (la copropriété).

1.4.3- Rural Matters and environment notaires if the live in the country side , there are in charge of establishing documents , Representatives of the law in rural communities. They give advice for developing agricultural establishments. Ex: hand-over credit plan which is a document 1.4.4_ corporate business Consultants to business owners and companies. They give the best advices. Tax advice and estate planning (how can thy pay less tax , how to plan an estate in personal way and professional) They draft contract, able to organise auctions sells Tax and legal solutions. Not the majority of what the notaire do.

1.4.5- Local authorities Every area is subject to Town planning area (new buildings..). Environment law, wherever a company is created Local authority law Building permits, if someone wants to create a new building, the notaire is the best person to go to, Planning Permission Boundary Marking (Cadastre) Preemption and expropriation: land own by the state, eminent domain 6

Real estates issues: rural roads, ownerless property, state-owned property, burial plots. Highway (autoroute)

Comparison with English solicitors Solicitors have lost their monopoly on conveyancing on contrary to French notaires. They work at same area Buying and selling Our residential property team provides and efficient and helpful legal service to assist you with the buying and selling of your home. We help to make what can be a stressful experience proceed as smoothly as possible Probate How to make a will-probate-legal issues after death 1990- courts and legal services act 1999 -Access to justice act

PART TWO: WHY A FRENCH NOTAIRE Notaires have monopoly in matters relating to purchases and sales co ownerships Land plots Leases (bail) & Mortgages: hypothèque

2.1 _ Advising A notaire is called a Natural go-to-go man/woman. He needs to be clear, understandable, be the advicer, objective. He has to be skill legal advice, knowledge and awareness of any legislative change Why a zoning system? There are big and small zones. Public service of quality. A locally accessible genuine legal public service To keep up with geographic and demographic changes. 2.2_ LEGAL SECURITY They are expected to develop Legal ability. Legal security and durability through legal instruments and notarial deeds. Any instrument drafted by the notaire has a legal status so it cannot be questioned before a court. The document has the power of a final judgement. A Notaire is an amicable judge or a dispenser of out-of-court justice. A notaire is legal specialist with public authority assignment who secured transactions enforceable contracts.

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The notaire has the responsibility to check and keep of title deeds for a long time (100 years) , They kept them to be able to certainty about the ownership. They also have the monopoly over access to the file recording the rights of ownership over building. They must provide the best quality of service through compliance or rules. Guarantee of security through the notaire’s liability 2.3- MONOPOLY IN THE FIELD OF CONVEYANCING The notaire’s work during conveyancing is detailed updated property database. He has to provide a detail of the property. A notaire must be able to determine the value of the property (the price). The client will required the notaire if the price is the normal price or not. The notaire provide what we called a “one-stop” service. They represent the buyer and the seller, either the notaire is the same, there can be two different. The notaire will secure every stage of a transaction . Preliminary contract . Deed of sale . administrative formalities . Taxes and land registration: calculate, declare the taxes to the authorities, recorded the legal status of the property 2.4 – NOTAIRE’s FEES The amount of money the notaire’s receive. The money is not freelance it is a national scale of prices and decided by the French minister of justice. All notaires have to get the same fees. The fees are not negotiable and the money doesn’t all go to the notaire’s; divided in 3 parts: - Taxes payable to the state - Expenses - Actual remuneration 5% of the price of the property. If it’s a new apartment, the fees are less. 2.5 – CONFIDENTIALITY As a notaire you are engaged to the Professional secrecy. Absolute confidential. They deal with Property specialists, make, alter and register wills Going trough probate If a person draft a will, it is in the office of the notaire. there is a all procedure trough the notaire’s make sure the will is valid When the notaire grant probate. In England is it different, there as no notaires. If you die the close family will ask to the solicitors and the go to court (the registry of the family division of the high court TO CONCLUDE There are 4 main stages / 6 months

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1- The notaire is responsible for drawing up a list of people who will receive the inheritance. To do that he must receive the will 2- The notaire is responsible for drawing up of the deceased’s property and assets 3- Mortgage and tax formalities (state certificate+ statement of inheritance 4- The possible division of assets or undivided shares schemes (regime de l’indivision)

PART 3: BUYING A PROPERTY IN FRANCE One option Buy to let (loi scellier) If you have money Lease back ===) Company sells Property and rents...