Notaries are those public officers who confer the adequate formality on documents so as to give legal certainty and prevent litigation. The legal regime governing their profession flows from Notary Law. This places them in a "strict liability" regime, meaning a notary will be held liable for any damage arising from an action or omission without needing to prove fault.
Material and non-material damages can be claimed by those who lose as a result of the commission or omission of the notary. The claims can be based either on defaults of performance, defective works, incomplete performance.
Typical situations arising out of notarial liability include:
Negligence of duty
Wrong or defective procedures
Issuance of fraudulent powers of attorney
Transacting using false identification documents
Conditions of Strict Liability of Notaries
Under the Notary Law, notaries are held out as professionals in the performance of the tasks entrusted to them. Correspondingly, they are expected to adhere to stringent rules and guidelines. A notary is under legal duty to use the highest degree of care in the exercise of one's duties. The breach in liability will be determined not by the standard of the ordinary but by the objective standard of a professional in the same field.
Under Article 162 of the Notary Law, a notary is strictly liable for any injury and damage caused by their actions or those of their personnel provided that all of the following conditions are present:
There must have been an action or an omission by the notary or an employee.
This action or error must have caused an injury.
There needs to be causation between the action and the damage.
Under the principle of strict liability, the legal burden of proving negligence does not lie upon the person who suffered damage. In such a case, it is not pertinent for the claimant to establish negligence on the part of the notary. Compensation Claims Against Notaries in Turkey
Defenses Against Notarial Liability
Even under the strict liability regime, a notary will be discharged from liability if he shows that the damage would have occurred even if there was the required level of care. That means mere pleading of diligence by the notary is not enough to exculpate him. However, if he is able to show that even with the required level of care, damage was inevitable, then he may be exonerated. This burden of proving that an intervening event destroyed the chain of causation between the act and damage falls upon the notary.
A notary may also avoid liability by proving the following:
The loss was due to a case of force majeure, be it because of fire, flood, or earthquake.
His own negligence has contributed fully to the damage.
This was damage caused by the gross negligence of a third party.
An easy and common basis of notarial liability arising from a fraudulent transaction is the presentation to a notary public of fake documents, such as ID cards, driving licences, and vehicle registration certificates. Suppose the staff of a notary failed to verify any discrepancy in information shown on the fraudulent ID card presented, and injury occurred. The question to be asked is whether the document was convincingly fraudulent. If the notary relied upon a document which was hard to realize as fraudulent, then their liability can be reduced on account of the gross negligence of the third party.
In all other respects, a notary should, in principle, be made liable for any financial damage caused by them.
Judgments about Notarial Liability
Court decisions have consistently upheld the strict liability of notaries under Article 162 of the Notary Law. In this regard, for instance, if a notary conducts a sale based on fraudulently obtained identification; and thereafter, it becomes apparent that the notary failed to identify such a fraud when the discrepancies were glaringly apparent, they will be liable for any resulting damage. Finally, it is not enough that the notary be content with stating he was diligent but must show, even with the greatest care, injury could not have been avoided.
In various decisions pronounced by the Court of Cassation of Turkey, it was held that the legal liability of notaries is a sort of strict liability. Notaries shall have to apply the same standard of due care as that required from any other prudent professional under similar circumstances. They are responsible not only for their own fault but also for the actions of the employees in their employ. In the case of an error and fault, the notary is entitled to recover the amount from the responsible staff.
Conclusion
The notary's role in certifying documents helps ensure their legal certainty. Notaries, therefore, hold a position of great responsibility and are severely liable for injury caused by their own actions. In order to rebut a claim successfully, a notary will need to provide proof that damage was caused either as a result of force majeure or by the claimant's own negligence or by a third party acting with gross negligence.
If you have any questions or need further clarification regarding notarial liability or any other legal matter, please don't hesitate to contact CCS Law. Our experienced legal team is here to provide you with expert advice and personalised assistance. You can reach us by phone, email, or through our website's contact form. At CCS Law, we are committed to helping you navigate complex legal issues with confidence and peace of mind.
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice.