Dr Przemysław Szymczyk

Notary need not check a document before confirming the signature

When confirming the signature on a document, a Polish notary is not required to review the lawfulness of the document itself—particularly in the case of documents from abroad or in a foreign language.

The Polish Supreme Court adopted a resolution to this effect on 19 November 2010 (Case No. III CZP 82/10) upon review of a notary’s refusal to certify the signature on a document in Czech which was a power of attorney authorising the holder to act in the Czech Republic. The notary had demanded a sworn Polish translation of the document.

As the Supreme Court explained, the essence of the certification of a signature is that the signature is affixed to a document in the presence of the notary by a person whose identity has been confirmed by the notary. Thus the notary should assure only that the signature is made by the person in question, and has no obligation to review the content of the document itself. In such case, the notarial action is only to certify the signature, much like the case where a notary certifies that a copy of a document or transcript from a register conforms with the original, in which the notary’s review is limited to the authenticity of the copy or the correctness of the transcript.

Significantly, notarisation of a signature does not give a private document the evidentiary weight of a public document, which may occur only through the form of a notarial deed. Notarisation of the signature gives the weight of an official document only to the signature itself, not the document as such, which in other respects remains a private document. Thus the notarised signature enjoys a presumption of authenticity, but the document itself does not enjoy the presumption of correctness attributed to an official or public document.

The resolution by the Supreme Court was dictated primarily by practical considerations. In many instances the notary is not in a position to assess the legal significance of a document or the consequences that may flow from its content. This is particularly true for foreign documents or documents made in a foreign language, whose legality the notary could assess only after reviewing the substance and application of foreign law. This would expose the notary to an inordinate risk of criminal liability, particularly under Penal Code Art. 231 and 271. As a result, notaries might be extremely reluctant to certify the signatures on such documents or refuse to do so altogether. This in turn would have a severe impact on commerce, where use of notarised signatures for various sorts of documents plays an important role and in some cases is mandatory.

Przemysław Szymczyk, Real Estate practice, Wardyński & Partners