Protection against haste and a warning function are of paramount importance to the legislator, which is why freedom from form is often dispensed with and an appointment with a notary is mandatory. There is often confusion about the differences between a notarial act, notarial certification and notarial authentication. In this blog, we shed some light on this and explain the differences between these terms. In addition, at the end of the blog we explain the difference between a signature certification and a certified copy. It is clear that notaries are essential for all these terms. Meanwhile, you can save yourself a trip to a notary's office by quickly and easily making your notary appointment via notarity online with our partner notaries.
In principle, the principle of freedom of form exists in Austria. This means that the legislator leaves it up to the parties to decide in which form they want to conclude a legal transaction and to which form they want to be bound. However, this rule is characterised by exceptions. In some cases, the law deviates from the freedom of form and provides for a certain form requirement.1§883 ABGB
1. notarial deed
A notarial deed2https://gesetzefinden.at/bundesrecht/bundesgesetze/no/para-52 A notarial deed is a written document drawn up by a notary at the request of the parties involved and relating to a legal transaction or a legal declaration. When reading out the notarial deed, the notary also explains the meaning of the individual provisions in the deed and their effects. The involvement of the notary makes the deed a public deed, which gives it special probative value.3https://www.oesterreich.gv.at/lexicon/N/Seite.991259.html
A notarial deed, for example, is used for more AG/GmbH formation, GmbH share transfer, syndicate agreements, marriage pacts, exchange agreements, loan agreements between spouses or gift agreements, without actual transfer required.4§1 Emergency Act
2. notarial certification
Notarial authentications are to be distinguished from the notarial deed. Notarial certification takes place when a notary certifies findings of fact, declarations of knowledge made or other processes that are intended to establish legal effects.5§ 76 NOWagner/Knechtel, NO6 § 76 NO Rz 1. These certifications shall have the probative force of authentic instruments.6Kisser, Best Practice - Formalities and Certification (2013)
Notarial certification are of great importance both in legal terms and in everyday practice and represent a collective term of the following terms and :
- on the conformity of (i) paper copies (paper copies) with paper documents,
(ii) paper printouts with electronic documents; and
(iii) electronic transcripts (electronic images, electronic copies) with paper documents (the so-called "vidimisation");
- on the accuracy of translations;
- on the authenticity of signatures ("legalisation");
- on resolutions; and
- on entries in public books and registers.
Notarial authentications serve to increase the legal certainty and trustworthiness of certain legal matters. The involvement of a notary ensures that the parties involved understand the meaning and consequences of their actions and that the document can later be used as evidence in the event of a dispute.
2. 1 certified copy (vidimisation of transcripts)
The certification of a copy, also called vidimisation, confirms that a copy matches the deed. This can be done either by a literal comparison of the transcript with the deed or by making a copy of the deed under the supervision of the notary.
Excerpts of transcripts and copies may be certified if it is recognisable at which points omissions have been made and the vidimisation clause explicitly refers to the character of the excerpt.7Wagner/Knechtel, NO6 § 77 NO Rz 6
Notarisation of a copy of an already certified copy is usually rejected by the notary, as it could give the appearance of greater credibility, although it says nothing about the authenticity or credibility of the main document.
Examples are copies of identity cards and certificates.
2.2 Certification of translations
Notaries or their substitutes may be appointed as sworn and court-certified interpreters for a foreign language or have successfully passed the diploma examination for interpreters or the professional examination for translators. The certification of translations is also possible by certified interpreters. In these cases, notaries or their substitutes may notarise the accuracy of translations they have prepared or checked themselves in the respective language.8§78 NO
2.3 Notarisation of signatures
The so-called legalisation (authentication of a signature) certifies that a handwritten signature (corporate signature) on a paper document or an electronic signature (corporate signature) on an electronically executed document is genuine, i.e. a Signature of a specific person.9Kisser, Best Practice - Formalities and Certification (2013)
The requirements for certification are:
- the Proof of identity and, if applicable, the date of birth,
- in the case of the use of an electronic signature, proof that the electronic signature is associated with the party, and
- the setting of the signature or the signature before the court or the notary or the express acknowledgement that the signature or the signature originates from the party10Kisser, Best Practice - Formalities and Certification (2013)
The official notarial act only refers to the authenticity of the signature and the time of signing. If, on the other hand, the content of the signed document is to be publicly authenticated, a notarial act or notarial record is required.
In order for a deed to become a recordable deed, the signatures of the parties must be notarised. These are issued in the form of a clause which is placed directly on the deed by a notary. If there is no space for this on the deed, a separate sheet is used and attached to the deed with a seal.
Examples include powers of attorney, company register applications, commercial register applications, real estate purchase agreements, pledge deeds and declarations in lieu of an oath.
2.4 Notarisation of meetings and resolutions (notarial record)
If the course of a meeting (e.g. a shareholders' meeting) is to be notarised, the appointed notary must draw up minutes.11§87 NO The notarial record is a record of facts that take place personally and directly before the notary and of declarations made in his or her presence. The drawing up of a notarial record ("notarial certification") is a mandatory requirement for the effectiveness of the resolution to amend the articles of association, the dissolution of the company and the merger. According to § Section 120 para 1 AktG every resolution of the general meeting shall be valid only if it is "authenticated by a record of the proceedings made by a notary public".
The notary shall notarise the facts he/she has observed himself/herself as well as legally relevant events (e.g. the declaration of the chairperson on the type of convocation and the quorum of the meeting). In order to enable the verification of the fulfilment of certain legal requirements (proper convocation, voting rights, quorum), the notary must also record the relevant facts. Thus, not only all declarations and perceived circumstances, but also all other legally relevant events must be recorded. The notary may therefore count the votes himself and record the result. However, he/she may not draw any conclusions himself/herself, for example about the rejection of the motion. These are reserved for the chairperson of the meeting and are to be certified by the notary as his/her declarations.12KisserBest Practice - Formalities and Certification (2013), page 17
Examples: Amendment of articles of association GmbH and capital increase GmbH.
2.5 Certification from public books or registers
According to § 89a NO the notary may certify the following:
(i) the conformity of copies and extracts from public books or such registers with the entries therein; and
(ii) confirmations of facts arising therefrom (including schedules, card indexes, plans and collections of documents and related judicial and administrative records).
In practice, this usually involves certifications of the registered existence of a company, the appointed corporate bodies and their power of representation, confirmations of the current legal successor to a rights holder entered in a register who has since ceased to exist, the amount of the registered share capital, the name of the owner registered in the land register or the rank of a mortgage. Such certifications are often required in the area of company law by foreign parties. If the power of representation is already certified in the notarial deed, however, it is not necessary to obtain additional extracts or official court confirmations (thus, when certifying a power of attorney to be used abroad, the notary can certify the power of representation of the corporate body signing the power of attorney after inspecting the commercial register).13 Wagner/Knechtel, NO6 § 89a NO Rz 1.
However, the notary only confirms facts that "result" from the registers. The notary may not draw any conclusions on the basis of his inspection and confirm them. The notary is not permitted to certify facts the existence of which, in his/her opinion, can be deduced from the public books or registers. If, therefore, it is certified "after inspection of the company register" that a managing director has sole signatory power, this merely refers to the reproduction of the information registered in the company register. This does not confirm whether the entry is actually correct.14Wagner/Knechtel, NO6 § 89a NO Rz 2 and 3.
Examples are register excerpts (company register, land register, commercial register).
2.6 Authentication from public documents
While the regulation of the § 89a NO limited to authentications in connection with public books or registers, a notary may, in accordance with § 89b NO quite generally issue certifications of facts arising from public, publicly authenticated documents or court and administrative acts. Regardless of the wording of the law - the NO speaks of certification - these are confirmations.
3. difference between notarial deed and notarial certification
A notarial deed differs in its content from a notarial certification in that legal declarations and legal transactions (§ 52 NO) are certified in it. The notarial deed must be read out personally by the notary. However, the recording has as its object the authentication of facts which take place personally and directly before the notary and of declarations which are made in his presence. Therefore, although the express use of the word "notarial deed" is not prescribed by law, the notarisation of the general meeting by the notary in a minute cannot replace the drawing up of a notarial deed.
4. difference certified copy and certification
The certified copy (certified transcript) is a confirmation by a notary public, the district court or the issuing authority that a copy of a document corresponds to the original. This type of certification serves to confirm the authenticity of a copy.
The certification of signatures (public certification), on the other hand, refers to a private document. Here, the notary public or the district court certifies that the signature of a certain person is genuine and originates from the person who signed or acknowledged his or her signature before the notary public or the district court. This type of certification aims to confirm the authenticity of the signature.
It is important to note that notaries in Austria are independent legal professionals and perform their work as a public function. They have the task of ensuring legal certainty and legal clarity and informing the parties about their rights and obligations. Notarial acts therefore often provide additional protection against legal disputes and uncertainties in connection with legal transactions.
All of the notarial services mentioned above can be quickly and easily online with one of our partner notaries.
Disclaimer: Please note that the information I have given you here is of a general nature.
It is advisable to consult a notary or lawyer for comprehensive advice on specific legal matters.