THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ XLIV ~ |
CONCERNING
NOTARIES WHO ARE REQUIRED TO PLACE PROTOCOLS AT THE BEGINNING OF PUBLIC
DOCUMENTS. |
|
( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ). |
The Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician. |
PREFACE. |
We have recently
learned of a controversy which has given occasion to the enactment of
this law. An instrument, of which a woman was said to be the author,
but which was not written in her own hand (for she could not write),
but had been copied by a notary, who had added the woman's signature
to it. The instrument also indicated that witnesses had been present.
Doubt, however, arose as to the credit which should be given to it,
the woman declaring that she had not consented to certain clauses included
therein; and the judge having jurisdiction of the case attempted to
ascertain the truth by means of the notary, who, having been called
into court, answered that he recognized the handwriting, but was ignorant
of what the parties agreed to, because the document had been dictated
to one of his clerks, and he had not been present when it was completed.
Then the clerk, having been summoned, appeared in court, and also stated
that he had not written the instrument in the first place, but had only
been present at its execution, and that he to whom it had been dictated
could not be found; hence the judge being unable to ascertain the truth
by means of witnesses, the whole matter was left in uncertainty, which
has induced Us to make an investigation, and publish a decree for the
regulation of similar cases. |
CHAPTER I. |
We
also deem it proper to come to the relief of Our subjects, and enact
a law for the general welfare of all, by which it is proposed to
compel notaries by all means
to be present at the execution of legal instruments, and, unless this
is done, such instruments shall not be considered complete, in order
that the said notaries may be familiar with, and take part in the transaction,
and when they are interrogated by judges, may be aware of what has taken
place, and give proper replies, especially where the parties to the
instrument are ignorant of letters, under which circumstances it is
very easy for them to deny what actually happened. (1) Therefore, with a view to preventing such occurrences, We have drawn up the present law, and desire it to be explicitly observed by notaries both in this Most Fortunate City and in the provinces; and they are hereby notified that if one of these should violate it in any respect, he will certainly be deprived of his office; and the person who is directed by him to see to the execution of the document, and was present, shall be substituted for him, and shall hereafter exercise the functions of the office, just as his superior did in the first place, by way of punishment for having neglected to discharge his duty, and for not having acted in compliance with the wishes of the parties interested. We impose this penalty upon notaries, in order that such officials may become more just and circumspect, and may not, for the sake of their own pleasure and convenience, cause annoyance to others. (2) Therefore, if a notary should prove himself to be unworthy of holding his office, he shall be deprived of it, and his place shall be taken by another; but the chief of the body of notaries shall not be prejudiced in any way (even if he himself is not a notary), nor shall he be deprived of any emoluments, as the punishment shall be strictly confined to him who failed to perform his duty, and who shall lose his place; for the offences of notaries do not affect the rights of their official superiors. (3) Notaries shall not excuse themselves from being present at the execution of instruments by alleging as a pretext illness or their occupation with other affairs, for if anything of this kind should occur, they will be permitted to call the contracting parties before them, and have the business attended to, as such cases rarely happen; and it is not proper for private business to prevent public officials from attending to matters of general importance, as there is nothing so absolutely certain among men that it cannot (even though it may be perfectly just) still give rise to some doubt. The fees of notaries shall not be diminished on account of this law, as they have many opportunities to draw up contracts, and, besides, it is much better to do a few things carefully than many in a negligent manner. (4) Therefore, in order that this law may not appear to notaries to be too severe, We, being aware of the failings of human nature, have provided reasonable rules for them, and on account of the probability of doubt arising under such circumstances, do hereby grant them permission to appoint substitutes (a matter which shall formally be published by the Illustrious Master of the Census of this Most Fortunate City), and We authorize the said substitutes to be present at the execution of the instruments aforesaid; but no other notary shall either be appointed in the beginning, or be present at the transaction, except the one indicated, and his substitute, who is duly authorized and designated for this purpose. If this law should be violated and someone else be appointed, the notary who has been duly empowered by Us in the first place shall be liable to the penalty; but the instruments shall not be rendered void, because of their usefulness to the contracting parties. We desire that, for the future, notaries shall, through the fear of punishment, obey this law and strictly observe everything which has been prescribed by Us. |
CHAPTER
II. NOTARIES SHALL WRITE THE INSTRUMENT UPON THE SAME SHEET WHICH CONTAINS THE PROTOCOL, THE DATE, AND THE NAME OF THE CONSUL. |
We
also add to the present law that notaries shall not draw up instruments
on any other sheet than the one (called the protocol) which bears at
the head the title of Our Most Glorious Count of the Imperial Largesses,
and the date of the execution of the document, and whatever else it
is customary to write there, and notaries must not abridge the protocol,
but leave it as it was inserted; for We are aware that many forgeries
have been, and are now being committed in instruments of this kind,
and that some of the latter have protocols which do not belong to them,
but to other documents, the result of which is to render them void;
hence the whole of the instrument must be written on the same sheet,
as We have previously stated. Therefore,
whatever has been decreed by Us with reference to the nature of such
documents, and the abridgement or substitution of protocols, We desire
to be observed only in this Most Fortunate City, where there is always
a multitude of contracting parties, and a great supply of blank paper,
and it is easy to be present and have transactions conducted in a legal
way, and not afford any opportunity for the commission of forgery, for
which crime those will render themselves liable who presume to act in
any other way except that prescribed by law. |
EPILOGUE. |
Your
Highness will hasten to carry into effect the rules which it has pleased
Us to promulgate by means of this law. |
Given
at Constantinople, on the nineteenth of the Kalends of September,
during the second year after the Consulate of Belisarius. |
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