The role of a notary
in the Polish legal system
A notary acts as a person of public trust, they safeguard the security of legal transactions and are obliged to care about the reasonable interest of all the parties to the transactions performed before them. Therefore it is hard to overestimate the role of a notary in the Polish system of private law and every agreement prepared by them becomes binding law for all those who signed it. For that reason the motto of Polish notaries „Lex est quad notamus” – what we write becomes the law.
A notary in the Polish legal system performs the acts the party are obliged (under separate provisions of law) or are willing to make in notarial form.
The agreements, the subject matters of which are: transfer of ownership to a real property, as well as many others, enlisted in the Polish law, require for their validity the form of notarial deed.
If a real estate is located in Poland, a proper form to enter into such agreement shall be the form provided for under Polish legislation no matter what are the citizenships of parties to such agreement. Therefore, the proper form of notarial deeds. In such event the parties appear in the notary office, who drafts the contract taking into consideration their settlements, however, looking after its compliance with law and principles of community life and makes it a notarial deed. Moreover, a notary is also obliged to submit a proper motion to the land and mortgage register of given real estate, so the states included there comply with actual status. It is also notary’s obligation to collect the tax provided for in the Polish tax provisions for certain transactions including: tax on civil law transactions or inheritance and donation tax and VAT tax on its remuneration.
Other agreements which under the Polish law must be executed in the form of notarial deed are for example some agreements of commercial companies, property marital agreement, property separation, division of inheritance, establishment of enforcement title pursuant to article 777 of the code of civil procedure (voluntary submission to enforcement), transactions related to cooperative ownership rights to living premises or perpetual usufruct (lease). Any preliminary agreement can be made in the form of a notarial deed.
Under the provisions of law some acts in law must be undersigned before a notary who certifies authenticity of the signatures. Notary’s authentication is necessary when the shares of limited liability company are sold or the content of land and mortgage register is changed. The parties set their signatures in the presence of a notary on the agreements they had prepared before and the notary only confirms identity of the people who set their signatures. It is a matter of dispute if a notary can anyhow intervene in the content of acts performed by the parties.
It is often required that the specimen of signature is made before a notary – for example a specimen of signature if the member of company’s management board is changed. A notary confirms the identity of a person setting it signature’s specimen, and such person can file the document in a bank, State Court Register or another institution which required such specimen.
Every act before a notary must be performed in Polish. If a party to a transaction does not have a good command of the Polish language a sworn translator of a given language must be arranged and present in the notary office unless the notary has qualifications of the translator of certain language.