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3 juin 2009 Vol.5 No.21.2

Notarial deeds a treasure chest of evidence

Auteur : L'équipe

The value of notarial deeds in juridical acts is far more significant than people think and it’s a wonder why more contracts are not signed in such form.

Many people are very familiar with the fact that hypothecs and deeds of sale are passed before notaries. Yet, the value of a notarial deed for evidentiary purposes goes well beyond this commonly held conception and is so valuable that it is a wonder that people do not turn to this vehicle for all contracts.

A notarial deed is, by law, an authentic act. This characterization can prove to be an invaluable asset for any lawyer involved in a litigious action.  This chatacterization means that all the facts, that the notary had the task of observing or recording, are evidence against all persons. As a result, an attorney who presents himself or herself before the courts does not have to prove the validity of the document, taht is was signed by the parties and that the parties’ intentions were clearly those which were manifested in the act.
On the contrary in juridical acts under private signature the parties, through their respective attorneys, must prove that the juridical act was indeed signed and intended for the specified end. As a result, the parties are burdened with an additional step in their legal proceedings. To add further insult to injury, an act in notarial form requires a specific action called improbation to contest the facts that were alleged in the notarial act. The notarial act not only makes proof of its content but it must be the target of a specific action to remove its characterization. Wouldn’t anyone want such protection in their contractual dealings?
Another distinguishing feature of this form of legal contracts is that the original juridical act done in notarial form is kept by the notary in a secure vault. The notary issues an authentic copy of the original which has the same value as the original. This makes it more likely that a document will not be lost or destroyed thereby ensuring that a person before the courts will not be compelled to adduce evidence of a document which can no longer be found. In such circumstances the burden of proof can be much more difficult to meet and much more costly. A further advantage lies in the fact that a juridical act in notarial form can be reconstituted should it be destroyed. The Quebec Civil Code of Procedure has specific provisions for this end.
With these advantages it is very surprising that more people do not subscribe to utilizing notarial deeds for all their contracts, whether they are shareholder agreements, construction contracts or any other contract entered into. Just as in the case of wills which, if done before a notary, do not have to be probated, contracts received before notaries do not have to be proved in a court of law.
Given how in some instances proof can be very difficult to make, one should seriously give consideration to concluding their juridical acts in notarial form. You’ve tried the rest… now try the BEST!

Pensée de la semaine:

La créativité est inversement proportionnelle au nombre de cuisiniers qui veulent participer à la préparation de la soupe.
[Bernice Fitz-Gibbon]


Crochetière, Pétrin offre des services juridiques complets et de qualité supérieure en droit de la construction et de l'immobilier.

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