Civil law notarial acts can be executed immediately. Meaning seizing money or property without a court.
Does the US allow private parties to have a legally executable contract that could be executed without a court?
TIL notarial acts in Dutch law.
As for whether the concept exists directly in Anglo-American law, I don’t think there’s a direct analog, but some procedures in contract and property law can get close.
The US Constitution’s Case or Controversy clause means that judicial cases cannot be adjudicated in advance of an actual dispute, which would generally mean that judicial enforcement (like garnishing wages or seizing assets) is not yet available. The same generally applies in minor criminal cases or infractions, so things like on-the-spot penalties for roadway offenses are not a thing.
However, if we broadly consider the idea of “a document that is taken at face value” once signed and without the need for vindication through the courts, then perhaps some documents in US law will meet that definition. For example, US judges will often issue forward-dated orders that take effect upon a specific condition, on a specific date. Such orders are fully valid, and failure to comply becomes a criminal offense. However, this is kinda obvious, that a court’s order would be recognized as mandatory.
If we look at private parties, such valid-once-signed documents are rarer, but not non-existent. One can argue that deed restrictions on property meet that criteria, with a common example being an HOA restriction on real property. Repeat violation of HOA rules can allow the HOA to assess penalties against the homeowner, with the highest penalty being a forced sale and seizure of the property. Whereas typical contract law would permit the target of such action to petition a court to intervene in advance, the juncture of contract and property law may give deed restrictions different treatment, depending on the US State in question. It is plausible that some jurisdiction will allow collection of the supposed penalty first, and only allow contesting the penalty afterwards. Functionally, this could be viewed as a “notarial act” but judicial review available.
One other example might be the Payable On Death (POD) beneficiary designation for bank accounts. Authorized by most US States (except Texas and Louisiana, apparently), such model legislation allows for a bank’s recognition of POD beneficiaries upon the owner’s death, without going through the normal procedure of legal probate (to divide the owner’s estate). This essentially means that this portion of the contract between the account owner and the bank is self-executing. That said, the bank would need to first recognize that the owner is dead, and that usually requires a signed death certificate, issued by a coroner or judge. So maybe not totally self executing, but the triggering condition would set into motion an action which does not require judicial intervention to implement.
Great answer!
Notaries in civil law are actual attorneys and go to law school. They serve as neutral parties to enforce the contract and make sure it complies with the law. If I bring them a contract to sign and there’s an illegal or unenforceable clause, they make us remove it.
As far an automatic enforcement, I’m not entirely sure how that plays out, but the notarial act is equivalent to a court order from what I understand, so it sounds like a request for an advanced court order in the US is similar
If I bring them a contract to sign and there’s an illegal or unenforceable clause, they make us remove it.
Do I understand that the civil notary is involved even during the early stages of drafting a contract? Does this apply to every contract or between certain parties? Or is the civil notary only included whenever one or both parties requests that a notary be involved?
In Anglo-American law, we assume the contract is legal when all parties sign it. And only later if any party disputes a clause, that is when a judge would be assigned to examine the lawfulness of its provisions.
That said, there is also the arbitration procedure, which is rooted within contract law and authorized by federal statute. In a nutshell, arbitration is an alternative dispute resolution process that is specified in a given contract, where a private, neutral mediator is hired jointly by both parties to adjudicate the specific dispute. Unlike a judge, no legal precedence is set, there is no appeals process in mediation, and not all rules of evidence or procedure are adheres to. However, the contract will specify that the mediator’s ruling is final, even when there is gross misapplication of controlling law. So far as I’m aware, the only class of permitted challenges to an arbitration ruling is if the mediator is found to have been partial, which is a high bar to meet.
As a concept, if all parties to a contract voluntarily agree to arbitration, then I wouldn’t see a reason to prohibit the practice, as it does genuinely free up the schedule of the courts. However, as the practice exists in the USA, arbitration is all-but-forced upon consumers, employees, and other entities who have less bargaining power and would otherwise agree to the same contract without the arbitration provision. This is a problem with “contracts of adhesion”, which historically were void if a party’s agreement to a contract was not voluntary. But the USA courts have gutted that public interest, simplifying the question to merely “could the party not sign?”, which technically exists whenever there isn’t a gun pointed at their head, but doesn’t take into account any power dynamic that exists, such as when there are only three providers of cloud data services and all require arbitration.
I personally believe that arbitration clauses should be voided in certain cases, under the principle that they are against public interest, which is the standard in English common law. Or under anti-trust when all the major players in a market mandate arbitration. The very existence of mass arbitration situations – like when lots of consumers sue a single company – is a waste of everyone’s time and effort, and also deprives citizens of a right to jury trial. And the lack of precedence means that the same situation will be litigated over and over. This is bonkers and needs to end, but with USA law and arbitration contracts curtailing class action lawsuits, this is the reality we’re left in.
But I digress.
Yeah, the civil notary will typically work with lawyers/parties on all sides and ensure that the notarial act is legally valid. I’m not 100% sure what would happen if the notary did something wrong.
We have arbitration and meditation too. If there is a mediator, the mediator will sometimes work with the notary to finalize the agreement.
Often agreements are split into a contract and a notarial act. More important, but legally simpler terms are in the act and complicated, but less critical are in the contract. This means that you can execute critical terms without court, but go to court about more vague/complicated terms in the contract.
Often agreements are split into a contract and a notarial act.
Is there a concrete example about when this split would be done? I’m having trouble understanding what “complicated, but less critical” parts of an agreement would mean. Certainly, things like payment terms would be simple and very critical to an agreement, but would the less critical parts be things like technical requirements to consider a contract as delivered?
I’m not a lawyer, but in real estate transactions, the money transfer amounts, accounts and deadlines are for the notarial act. Terms like “damage to the property can be seen here and here, further damage is subject to compensation or repair by the seller” would be contract. This way, everyone gets there largest sums of money on time, and then what constitutes damage needing repair is left to courts and jurisprudence.
Child support and custody time would be a notarial act, but details of choosing schools is a contract.
Prenup decision on property sharing/separation is a notarial act, while you could have smaller contracts on expense sharing for small things.
Ah, I see. So notarial acts are the “big picture” objectives, which have been legally vetted by the notary and will take place essentially automatically, and the contract concerns itself with the small details that could be litigated in court if needed.
That’s quite an interesting way of dividing agreements, and if US States would pass enabling legislation to allow such “bifurcated” contracts, I could see some very real improvements to how cases get litigated here. As you said, an improvement would be better assurance that, say, a builder will be paid most of their compensation when the job is completed, and small complaints about the quality of the work can be adjudicated separately. Whereas in our current system, the payer can withhold all payments if they allege even a minor issue, and that sort of delay only results in higher building costs to everyone. The current contracts are also massive, with different criteria for when additional payments will be made. Having some firm dates for payments would make project planning easier, since even if the project is delayed, the payments should still be on-time.