1
THE REVIEW OF NOTARIAL ACTS:
1927 TO DATE
RYAN CALIGARI
Thesis submitted in partial fulfilment of the Degree of
Doctor of Laws
Faculty of Laws
University of Malta
May 2015
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3
ABSTRACT
This thesis focuses on the system of review of notarial acts provided by the Notarial
Profession and Notarial Archives Act1 making a comparative analysis between the old
system as it stood prior to Act XXIV of 2011 and the overhauled one after the amendment
by this important Act.
Chapter 1 presents a historical approach to this system as from 1927 till 2011 by exposing
the major developments in this subject through an examination and an explanation of the
significant legislative amendments which took place during this period. Chapter 2 evaluates
the extent of the effectiveness of the old system and identifies its defects. In addition, this
Chapter also puts to light any consequences which emerge from it and discusses any
temporary legislative measures which the Legislator took in order to circumvent its
shortcomings before the introduction of Act XXIV of 2011.
Chapter 3 outlines the main innovations to the overhauled system which started off on the
1st January, 2013. It compares and contrasts the new system with the old one, exposing
important changes and improvements are exposed.
Chapter 4 delves into and examines other systems of review which are established in other
countries having civil-law notaries. This Chapter involves a lot of important information
regarding these systems which may be implemented in our law in order to improve our
system of review.
Chapter 5 tackles the subject from its practical point of view. The information found in this
Chapter was obtained by means of a questionnaire distributed amongst five review officers.
By giving out the results, this Chapter aims at perceiving a general overview of the
practical difficulties which the review officers encounter during the current system of
inspection and review of notarial acts.
Keywords: Comparison, Overhaul, Enhancement, Efficiency, Enforceability.
1 Chapter 55 of the Laws of Malta.
4
I dedicate this thesis,
To my late beloved grandfather, for instilling the importance of hard work and
higher education,
To my loving parents and brother for the support and encouragement of
reaching my dream,
To my dearest fiancée Thelma for her patience and understanding.
5
TABLE OF CONTENTS
DECLARATION OF AUTHORSHIP .................................... Error! Bookmark not defined.
ABSTRACT ............................................................................................................................... 3
DEDICATION……………………………………………………………………….……..4
TABLE OF STATUTES .......................................................................................................... 9
JUDGEMENTS ....................................................................................................................... 11
ACKNOWLEDGMENTS ...................................................................................................... 13
LIST OF ABBREVIATIONS ................................................................................................ 14
INTRODUCTION ................................................................................................................... 15
1.1 Aim ......................................................................................................................................15
1.2 Methodology .......................................................................................................................15
1.3 Scope and Limitations .........................................................................................................16
1.4 Sources ...............................................................................................................................17
CHAPTER 1............................................................................................................................. 19
HISTORY OF LEGISLATION REGULATING THE INSPECTING OF NOTARIAL
ACTS, REGISTERS AND INDEXES ................................................................................. 19
1.1 A Legislative Overview .........................................................................................................21
2.1 The Composition of the Court of Revision of Notarial Acts ...................................................22
2.2 The Duties and Powers of the Court of Revision of Notarial Acts..........................................24
2.3 The Inspection of Notarial Acts, Registers and Indexes ........................................................27
2.4 The Disciplinary Punishments ..............................................................................................29
3.1 A Concluding Observation ..................................................................................................31
CHAPTER 2............................................................................................................................. 32
HOW EFFECTIVE WAS THE PRE-2011 SYSTEM OF REVIEW OF NOTARIAL
ACTS? ....................................................................................................................................... 32
6
1.1 A Practical Perspective ........................................................................................................32
1.2 Consequences of a Doomed System ....................................................................................36
2.0 The Notarial Acts (Temporary Provisions) Act, 1999 ............................................................38
2.1 The Raison d’Être of this Law ...............................................................................................38
2.2 The Appointment of the Special Commissioner ...................................................................39
2.3 The Three Different Steps ....................................................................................................41
2.4 A Good Step in the Right Direction? .....................................................................................43
CHAPTER 3............................................................................................................................. 45
THE REFORM IN THE SYSTEM OF REVIEW OF NOTARIAL ACTS .................. 45
1.1 The Role of the Notarial Council ..........................................................................................46
2.1 The Overhauled System of Review of Notarial Acts ..............................................................49
2.2 The Enforcement of the System ...........................................................................................55
3.1 The Court of Review of Notarial Acts ...................................................................................58
4.1 Disciplinary Punishments .....................................................................................................61
5.1 Was the Reformed System a Success? .................................................................................62
CHAPTER 4............................................................................................................................. 64
THE SYSTEM OF REVIEW OF NOTARIAL ACTS IN OTHER STATES............... 64
1.1 Italy .....................................................................................................................................64
1.2 Belgium ...............................................................................................................................68
1.3 Netherlands ........................................................................................................................71
2.1 The Way Forward? ..............................................................................................................74
CHAPTER 5............................................................................................................................. 76
THE REVIEW OF NOTARIAL ACTS .............................................................................. 76
A PRACTICAL OVERVIEW............................................................................................... 76
1.1 Methodology .......................................................................................................................76
2.1 Questions 1, 2, 3 and 4 ........................................................................................................77
7
2.2 Understanding the Results ..................................................................................................77
3.1 Question 5...........................................................................................................................78
3.2 Understanding the Results ..................................................................................................78
4.1 Question 6...........................................................................................................................79
4.2 Understanding the Results ..................................................................................................79
5.1 Question 7...........................................................................................................................80
5.2 Understanding the Results ..................................................................................................81
6.1 Questions 8, 9 and 10 ..........................................................................................................82
6.2 Understanding the Results ..................................................................................................83
7.1 Questions 11, 12 and 13 ......................................................................................................84
7.2 Understanding the Results ..................................................................................................84
8.1 Question 14 .........................................................................................................................85
8.2 Understanding the Results ..................................................................................................85
9.1 Question 15 .........................................................................................................................86
9.2 Understanding the Results ..................................................................................................86
10.1 Question 16 .......................................................................................................................87
10.2 Understanding the Results.................................................................................................87
11.1 Question 17 .......................................................................................................................88
11.2 Understanding the Results.................................................................................................88
12.1 Question 18 .......................................................................................................................89
12.2 Understanding the Results.................................................................................................90
13.1 Question 19 .......................................................................................................................91
13.2 Understanding the Results.................................................................................................91
14.1 Question 20 .......................................................................................................................92
14.2 Understanding the Results.................................................................................................92
15.1 Question 21 .......................................................................................................................93
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15.2 Understanding the Results.................................................................................................93
16.1 Question 22 .......................................................................................................................94
16.2 Understanding the Results.................................................................................................94
17.1 Question 23 .......................................................................................................................94
17.2 Understanding the Results.................................................................................................95
18.1 Questions 24 and 25 ..........................................................................................................95
18.2 Understanding the Results.................................................................................................96
19.1 Question 26 .......................................................................................................................96
19.2 Understanding the Results.................................................................................................97
20.1 Question 27 .......................................................................................................................97
20.2 Understanding the Results.................................................................................................97
21.1 Question 28 .......................................................................................................................98
21.2 Understanding the Results.................................................................................................98
22.1 Final Observation ..............................................................................................................99
CONCLUSION ...................................................................................................................... 100
1.1 Main Conclusion ................................................................................................................100
1.2 Recommendations for Future Amendments ......................................................................103
APPENDIX I .......................................................................................................................... 107
Interview with Notaries and Review officers. ................................................................... 107
APPENDIX II ........................................................................................................................ 108
Questionnaire for Review Officers. .................................................................................... 108
APPENDIX III ....................................................................................................................... 116
Consent for Participation in Interview(s) Research ........................................................ 116
APPENDIX IV ....................................................................................................................... 119
Consent for Participation in Questionnaire for Review Officers. ................................. 119
BIBLIOGRAPHY ................................................................................................................. 122
9
TABLE OF STATUTES
Maltese Statutes
Primary Legislation
Act XI of 1977: Amendment and Repeal of Laws Acts, 1977.
Act VI of 2001: Legal Procedures Act, 2001.
Act X of 1999: Notarial Acts (Temporary Provisions) Act, 1999.
Act XXXIV of 1979: Notarial Profession and Notarial Archives (Amendment) Act, 1979.
Act XXIV of 2011: Notarial Profession and Notarial Archives (Amendment) Act, 2011.
Act XIX of 2012: Notarial Profession and Notarial Archives (Amendment) Act, 2012.
Act I of 2011: Various Laws (Notarial Acts, Archives and Profession) (Amendment) Act,
2011.
Duty on Documents and Transfers Act, Chapter 364 of the Laws of Malta.
Notarial Profession and Archives Act, Chapter 55 of the Laws of Malta.
Notarial Profession and Archives Act, 1927, Chapter 92 of the Laws of Malta, Revised
Edition, 1942.
Notarial Acts (Temporary Provisions) Act, Chapter 408 of the Laws of Malta.
Ordinance XXXI of 1946: Notarial Profession and Notarial Archives (Amendment)
Ordinance, 1946.
10
Secondary Legislation
Legal Notice 408 of 2007: Adaptation of Laws (Chapters 51 - 100) Order, 2007.
Legal Notice 130 of 2009: Deposit of Uninspected Notarial Acts Regulations, 2009.
Italian Statutes
Il Regolamento di Esecuzione della Legge Notarile, (R.D. 10 settembre 1914, n° 1326 -
Approvazione del regolamento per l'esecuzione della L. 16 febbraio 1913, n. 89,
riguardante l'ordinamento del notariato e degli archivi notarili.)
Ordinamento del Notariato e degli Archivi Notarili (Legge 16 febbraio 1913 n.89)
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JUDGEMENTS
Edward Farrugia u Martu Lourdes Farrugia vs. Nutar Pierre Falzon, Court of Magistrates, per M.
Scerri Herrera, 2nd
October, 2013.
Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal Judicature) (Gozo), per Mag. Camilleri,
16th January, 2013.
Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal Judicature) (Gozo), per Mag. Camilleri,
30th April, 2013.
Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal Judicature) (Gozo), , per Mag. Camilleri,
1st April, 2014.
Il-Pulizija vs. Dr. Philip Said, Court of Magistrates (Criminal Judicature), per M. Stafrace, 2nd
December, 2013.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Demicoli, 21st November, 2006.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Vella,
25th October, 2007.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Demicoli, 23rd
June, 2008.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Quitano, 25th June, 2008.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Quitano, 1st July, 2008.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Demicoli, 25th July, 2008.
12
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Scerri
Herrera, 5th August, 2008.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Grixti,
30th October, 2008.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag. Grixti,
2nd
March, 2009.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Demicoli, 4th May, 2009.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Grima, 30th November, 2009.
Il-Pulizija vs. Sandro Schembri Adami, Court of Criminal Appeal, per Mag. De Gaetano, 4th June,
2010.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Demicoli, 3rd
June, 2011.
Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), per Mag.
Hayman, 12th February, 2013.
Il-Pulizija vs. Charles Vella, Court of Magistrates (Criminal Judicature), per Mag. Demicoli, 27th
September 2012.
13
ACKNOWLEDGMENTS
I would like to express my sincere gratitude to my tutor Notary Dr. Clinton Bellizzi BA,
LL.D. for his patience, guidance and advice throughout the past ten months. His guidance
helped me a lot during the research and the writing of this thesis.
I am also grateful to all those Notaries and review officers who participated in the interview
and questionnaire. Their vast knowledge and experience in the area of my study has been
indispensable for the writing of this work.
Besides, I would like to extend my thankfulness to the Notarial Council whose assistance
was indispensible when dealing with the comparative aspect with other countries.
Lastly, I also wish to thank the staff of the Melitensia Library at the University of Malta.
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LIST OF ABBREVIATIONS
AG Attorney General
Art. Article
BFT Bureau Financieel Toezicht (Financial Supervision Office)
Cap. 55 Chapter 55 (Notarial Profession and Archives Act) of the Laws of Malta.
Cap. 364 Chapter 364 (Duty on Documents and Transfers Act) of the Laws of Malta.
Cap. 408 Chapter 408 (Notarial Acts (Temporary Provisions) Act) of the Laws of
Malta.
OL Old Law
COM Court of Magistrates
CRNA Court of Revision of Notarial Acts
ENN European Notarial Network
Ibid ibidem
KNB Koninklijke Notariële Beroepsorganisatie (Royal Dutch Notarial Association
of Civil-law Notaries)
OUP Oxford University Press
per per curiam
v / vs versus
WWFT Wet ter voorkoming van witwassen en financieren van terrorisme (Money
Laundering and Terrorism Financing (Prevention) Act)
15
INTRODUCTION
1.1 Aim
The objective of this thesis is that of examining and discussing the legislative amendments
which took place as from 1927 to date which regulate specifically the review of notarial
acts and wills, in order to determine whether the current system of review is working
effectively and if in the affirmative to what extent. Besides, throughout this thesis, answers
will be given to questions as to what prompted the Legislator to radically change this
system by Act XXIV of 2011, what were its pitfalls, how were these addressed and whether
the new system has succeeded in solving the problems which the old system generated. In
addition, important and significant improvements are put forward.
The thesis is aimed to first give a legal-historical outline of the review of notarial acts and
then examines it through a critical point of view while comparing it with the latest
amendments brought by Act XXIV of 2011, with the intention of bringing to light its
shortcomings and pitfalls. It then passes on to adopt a comparative approach between the
new system which was overhauled by this Act and other systems of other countries. In
addition, improvements of the current system are sought through the opinion of five review
officers who mostly were also visitors in the old system of pre-2011.
1.2 Methodology
Throughout the whole thesis consultation was made with primary and subsidiary
legislation. Yet, in order to answer the thesis questions, it was essential to gain qualitative
information regarding this subject and for this reason it was felt that two of the best
methods of obtaining this kind of information were through the conducting of interviews
and the distribution of questionnaires.
16
It was important to have the say of these experienced minds who were interviewed. These
persons include practicing Notaries who largely experienced the old system, a review
officer who before 2011 was also a visitor, the Acting Chief Notary to Government and an
ex-President of the Notarial Council.2 These individuals have helped a lot in painting a
detailed picture of the practical shortcomings of the old system of review.
In order to deal with the current system of review from its practical perspective, it was
essential to collect comparable information from a limited number of persons who deal
with this subject matter constantly. Hence questionnaires were distributed amongst review
officers whose opinion was of huge significance to this thesis as opinions and suggestions
for improvements were shared.
In obtaining information regarding cross-border systems of other states, recourse was made
to the assistance of the European Notarial Network (ENN) by means of the extensive
collaboration of the Notarial Council.
1.3 Scope and Limitations
Firstly, this thesis does not focus on the generality aspect of supervision over Notaries or on
the extent of Notarial responsibility because these have been already been tackled in other
theses.
In addition, for the purposes of keeping the thesis under the word limit, only the most
important articles, sub-articles and amendments were discussed and examined. In so far as
the Court of Revision of Notarial Acts is concerned, it has been only tackled from the
review of notarial acts‟ point of view.
2 Due to the fact that one of these persons interviewed has passed away during the writing of this thesis, the
consent form was signed by his son.
17
Due to the fact that this subject is very specific and its legal literature is very sparse, few
sources were found, especially when it comes to the comparison aspect with the systems of
other states. Even when contacting the ENN, out of twenty two countries, only three of
them replied to the questions sent and Chapter 4 had to be only based on this information
provided. Hence, the comparison was only made with the Italian, Belgian and Dutch
systems.
Another constraint was that some review officers and Notaries refused to be interviewed
and to participate in the questionnaire.
1.4 Sources
This thesis has been largely formulated on the basis of various archival, printed and
published material. One of the primary sources for this study was the Notarial Profession
and Notarial Archives Act which Articles dealing with the review of notarial acts were
compared with abrogated legislation which was mostly found at the Melitensia Library,
University of Malta. The Notarial Acts (Temporary Provisions) Act was also consulted as
one of the main primary legislative sources.
Other sources vary from unpublished theses to case law regarding the effects which the old
system of review had on the general public. Besides, parliamentary debates were also
consulted in order to shed light on both the discussions which took place in the Maltese
parliament regarding the necessity of introducing a temporary measure in 1999 to solve the
problem of uncollected notarial acts and also on the discussions regarding the needed
overhauled system which started off in 2013 by Act XXIV of 2011.
Books and internet articles were consulted during the writing of the thesis but mostly when
discussing the foreign systems of review in Chapter 4. One of the main references as a
primary source of information throughout the whole of this thesis was the use of the
information obtained from interviews which were conducted with individuals who have a
large experience in the review of notarial acts. The use of the questionnaires is another
18
important source which is used in Chapter 5 in order to have vital information being shared
amongst review officers whose opinions were used to substantiate legislative proposals in
the conclusion of this thesis.
19
CHAPTER 1
HISTORY OF LEGISLATION REGULATING THE
INSPECTING OF NOTARIAL ACTS, REGISTERS AND
INDEXES
The office of the Notary Public is vital in society due to its main components of impartiality
and independence. These two attributes give the Notary a super partes dimension, meaning
that he cannot take sides. The elements of impartiality and independence aim to enhance
the integrity of this profession which its ultimate purpose is of preventing future litigations
and disputes.3 In fact, as Carnelutti rightly states, “Tanto piu‘ notaio, tanto meno giudice.‖
4
Article 25 specifies that one of his functions is of being a public officer who is capable of
attributing public faith to acts inter vivos and wills. Hence, this role carries with it certain
special obligations on part of the Notary:
―Egli percio‘ e‘ un pubblico ufficiale, e, esercitando una funzione di pubblico potere, e‘
soggetto, per la importanza e la esclusivita‘ di essa, a condizioni ed obblighi speciali.‖6
The raison d‟etre of this public faith envisaged in the notarial profession is trust. The
importance of trust in this office cannot be emphasized enough as it is crucial that the
Notary is trusted by the public and if such public faith is jeopardized, the notarial
profession would likewise be endangered.7 Similarly, it is also fundamental to the
community because for it to function properly it necessitates legal certainty and security.
3 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387). 4 Consiglio Notarile di Santa Maria Capua Vetere, „Il Ruolo del Notaio‟
accessed on 8th October, 2014; This means
that the function of a Notary in society results in less chances of resorting to the Court. 5 Cap. 55.
6 Ettore Protetti e Carmine Di Zenzo, La legge notarile Commento con dottrina e giurisprudenza delle leggi
notarili (Giuffre Editore, 1995) 5; Hence, because of the fact that he is a public officer and therefore he
exercises a public function power, he is subject to special conditions and obligations. 7 Daniel John Bugeja, „The Notion of Public Faith and the Office of Notary Public‟ (LL.D thesis, University
of Malta, 2010) 72.
20
In Malta the office of the Notary had always a position of trust. As Hon. Owen Bonnici
once stated;
„In-nutar ghandu a position of trust…Nahseb li n-nutara huma
professjonisti fdati daqs it-tobba, u n-nies jistennew li n-nutar jaghtihom
servizz tajjeb biex ipattilhom ghal-fiducja li huma ghandhom fih. Il-professjoni ta‘ nutar mhijiex pozizzjoni normali.‟
8
However, how far has the Notary retained this position of trust? In an article entitled „We
were duped by our Notary‟ a couple expressed their disappointment when they were
informed that the property which they bought two years earlier, was not registered by the
Notary in their name. This case proves that the trust which the notarial profession has
always enjoyed, can easily be circumscribed and that something needed to be done not only
to sanction abuses but also to prevent them from occurring in the first place.9 On this point,
as will be discussed later in this thesis, Hon. Jose Herrera expressed his concern about the
social disorder which these few Notaries managed to create.10
Hence although the Notary is an independent and impartial public officer, still his office
and notarial acts need to be supervised and inspected. In fact it is this role as a public
officer which necessitates a supervisory authority. The more important is the role of a
Notary in society, the greater is the need for an effective system of supervision. Indeed, the
trust of the public in this profession depends on both a functional system of review of
notarial acts and of an effective enforcement mechanism entrusted to the Court of Revision
of Notarial acts. However does our law cater for this and if yes to what extent?
8 Parliamentary Debate of 11th October, 2011 (Sitting No. 391); The Notary has a position of trust. Hon. Owen
Bonnici thinks that Notaries are professionals trusted on the same level of Doctors and the public expects that
the Notary gives a good service as a consequence of the trust which they have in such profession. The profession of the Notary is not a normal position. 9 Claudia Calleja, „We were duped by our Notary‟ The Sunday Times (Malta, 20 March 2011).
accessed on 9th October, 2014. 10 Parliamentary Debate of 11th October, 2001 (Sitting No. 391).
21
1.1 A Legislative Overview
An attempt to have a functional and effective system of inspection of Notarial acts even
existed in the nineteenth century, thus prior to the enactment of Chapter 5511
which today
regulates this profession. Ordinance V of 185512
required that after the public deeds were
inspected, they were placed in the Notarial Archives. However this provision was never
enforced mainly due to the failure of the CRNA which did not carry out the inspection on
individual Notaries twice yearly as it was duly expected by law. In fact as from 1906 it was
clear that regrettably „the revision….was very much in arrears.‟13
By Act XI of 1927 the Government enacted Chapter 92 of the Laws of Malta entitled
„Notarial Profession and Notarial Archives Act‟. The supervision over Notaries, Archives,14
and the Public Registry was regulated by Articles 109 to 127.15
From 1927 till 2011, there
were numerous amendments regarding this area particularly when it comes to the
inspection of the notarial acts, registers and indexes.16
Together with the inspection of these
acts, the Court of Review of Notarial acts has also experienced changes. While these
amendments were implemented in order to improve the system of review, in 2011 it was
considered that it needed to be radically changed. In fact by Act XXIV of 2011, the system
was drastically modified. However why did the Legislator feel this necessity? Was the
system out-dated to cater for the ever increasing obstacles in this profession? In order to
answer this question, one needs to analyse the old system of review and pinpoint its
shortcomings. Indeed, while this Chapter will explain in detail the amendments of the
system of review until 2011, Chapter 2 will determine and identify its defects.
11 The Notarial Profession and Notarial Archives Act. 12 Art. 100. 13 Michael Refalo, The Maltese Nineteenth-Century Notary and his Archives (Book Distributors Limited,
2014) 87-88. 14
In this thesis, Archives refers to the Notarial Archives. 15 Cap. 55. 16 From 1927 until 2007 there were a number of amendments to the Notarial Profession and Notarial Archives
Act which are not relevant for the purposes of this thesis. These amendments were made through Ordinance
No. XI of 1937; Acts XXXI of 1966, LVIII of 1974, XIII of 1983, XIX of 1988, VIII of 1990 and Act IX of
2000; Legal Notices 4 of 1963, 46 of 1965, 148 of 1975, 181and 186 of 2006 and Legal Notice 408 of 2007.
22
2.1 The Composition of the Court of Revision of Notarial Acts
Article 10917
stipulated that the supervision over Notaries, the Notarial Archives and the
public Registry was entrusted to a special Court called „Court of Revision of Notarial Acts‟.
This was ‗composed of three or more members called Visitors, being Judges, or
Magistrates of Judicial Police, to be appointed yearly by the Head of Government, in the
month of December, for the following year.‘ They were called „Visitors‟ because they were
expected to carry out surprise visits to the offices of Notaries and to the Notarial Archives.
However in practice this was rarely made.18
More importantly, this Court was duly
constituted when all the Visitors sat together. In addition, these Visitors had also their own
and separate powers when it comes to the inspection of the notarial acts. In fact they were
empowered to proceed with the inspections separately from the Court19
and to impose
punishments such as admonition, reprimand or a fine.20
However, this unfettered discretion
can be criticized in many ways. Firstly, it is true that a Judge or Magistrate has authority in
society but still he alone is not a Court of Law. In fact the law specifically stated that the
CRNA is not constituted unless all the Visitors sit together. Therefore, the fact that the
Visitor alone can impose punishments without having another one overseeing his actions,
may act against the principle of rule of law. Besides, are Judges and Magistrates the perfect
candidates to inspect the notarial acts? Although they have experience through their
profession, still one needs to assess whether their profession is sufficient to carry out this
duty of inspection. Undoubtedly, the primary duty of a Magistrate or Judge is to judge and
decide a particular case. However, does this really coincide with the profession of
inspecting acts which in the first place it demands experience in the field of Notarial Law?
Perhaps the best possible approach is to have experienced ex-Notaries to carry out the
inspection since this occupation necessitates vast knowledge in the Notarial Law field.21
17 Today this is Article 110. 18
Interview II 6. 19 In this thesis, Court refers to the Court of Revision of Notarial Acts. 20 Cap. 55, Art. 110 of the old law. By the Emergency Ordinance VII of 1958, Articles 109 and 110 were
amalgamated into one and the wording of the law was changed. However its main important substance
remained the same. 21 Interview III 1.
23
Another debatable point of view comes to play when discussing the period of the Visitor‟s
appointment. Traditionally the Visitors were appointed each year for the following year.
Consequently, each year different Visitors could be appointed. This could prejudice the
quality of the review since each year different Judges or Magistrates could be appointed
which do not have any previous valuable experience in the system of review. However by
the 197922
amendment, the Minister responsible for Justice had the power to appoint the
Visitors „for such period as may be specified in their appointment‟.23
Therefore by 1979,
the Visitors could be appointed for more than one year, which period was left at the
discretion of the Minister. Significantly, the law specified that the Visitors shall not all be
Judges and Magistrates but there must be the appointment of at least an Advocate and a
Notary having practiced his profession for at least seven years. Correctly, the Legislator
realized that this legislative area necessitates a professional whose experience is that related
exclusively to Notarial Law. In addition, to protect against conflict of interest, any
appointed Notary had to resign from his office. This amendment is fundamental because it
is imperative that experienced minds in this field would also contribute to the inspection of
the acts. Besides, the law fairly wanted to attain a balance in the sense that while accepting
Notaries and Advocates to be appointed as Visitors, still the CRNA had to be presided by at
least a Judge or Magistrate when deciding a case.
Another positive perspective of this amendment was the introduction of fees for the
supervision and inspection. Such fees were to be paid to the Registrar of the CRNA by the
Notaries. Until 1979, the Visitors were not paid for the inspections and this may have
resulted in poor inspection quality. However, in a rather controversial way, while a Notary
had to resign from his office, neither Judges, Magistrates nor Advocates had to retire from
their profession if they are appointed as Visitors. This could have serious repercussions
because there could be the possibility of considering the inspection as a method of making
extra money rather than discharging their duties as Visitors. Therefore, the best approach is
to have retired Judges and Magistrates presiding the CRNA;
“...min hu imħallef jew maġistrat sedenti m’għandux ikollu introjtu
22 Act XXXIV of 1979. 23 Ibid.
24
sussidjarju. Inti stajt tuża din il-prassi bħala karrotta billi lil imħallef partikolari tagħtih dik il-kariga biex jeżamina l-atti nutarili u lil imħallef ieħor, forsi għax jagħti sentenzi li inti ma tkunx taqbel magħhom, ma tagħtihx atti nutarili biex tinkih. Forsi fl-antik kienu jsiru l-preferenzi fil-ġudikatura b’dan il-mod, u din hija xi ħaġa ħażina. Għalhekk din il-qorti, li hija qorti importanti ħafna, kienet ġiet ristrutturata.” 24
In fact this was partially remedied in 2001,25
when the legislator felt the need that the
Magistrate or Judge appointed as a Visitor had to be a retired one. However, as it is argued
later on in this thesis, until 2001 the situation of the inspection of acts had already suffered
a number of crippling setbacks. Besides, it did not say anything regarding the appointment
of an Advocate implying that a practicing Advocate could still be appointed as a Visitor
without retiring from his profession. However, was this problem solved in later
amendments?
2.2 The Duties and Powers of the Court of Revision of Notarial Acts
The main duty of the Court was to determine whether the Notary, the Archivist and the
Director of the Public Registry carried out their duties according to law and if it resulted
otherwise, it had the power to apply penalties. Besides, if there was an omission on the part
of the Notary or Archivist, as the case may be, the Court had the power to punish him with
a suspension from his office until he complies and remedies the omission.26
In addition, if
during this suspension he continues to practice as Notary, he would be deprived from his
office.27
Moreover, Article 131 stated that a Notary who during a suspension issues a copy
or extract, ―shall be liable to a fine (ammenda) from eleven euro and sixty-five cents
(11.65) to forty-six euro and fifty-nine cents (46.59).‖ Therefore apart from being deprived
24 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387); The CRNA stated that who is presiding as a
Judge or Magistrate shall not have a subsidiary income by giving him notarial acts because one could give
this „bonus‟ to a particular Judge, with whose judgments one agrees, while another Judge, with whose
judgments one tends to disagree, would not be given notarial acts and have this subsidiary income. Maybe traditionally these preferences happened, and this is a bad thing. Therefore this Court, which is very important
Court, was restructured. 25 Act VI of 2001. 26 Cap. 55, Art. 124 of the old law. 27 Cap. 55, Art. 138 of the old law.
25
from his office, he shall also be liable to this fine. Nonetheless, considering the
authoritative nature of the Court, is this fine adequate and sufficient? Would it make more
sense if there is a more effective enforcement procedure in the first place? One needs to
analyze whether in case of omissions by the Notary, suspension from office is really
enough, especially in today‟s society. As it is discussed in Chapter 3, Act XXIV of 2011
catered for this problem and amended this provision so as to reflect these days reality.
According to Article 125 of the OL,28
the Minister for Justice or any person could bring to
the attention of the Court any breach of the law, any abuse, negligence or irregularity
committed by the Notary or by the Archivist. Upon ascertaining summarily on such
evidence, the Court would order the service of such application onto the Attorney General.
If such contravention is such that it demanded a heavier penalty than a caution or a
reprimand, the Court would decide whether further proceedings were required. In the
affirmative case, such application would be served on the Notary or Archivist, as the case
may be, allowing him a period of fifteen days within which to file a statement of defence. If
the latter is considered to be insufficient by the Court, then he would be summoned before
it and after hearing him and the Attorney General, it would decide the case.
Any decision, decree or order of the said Court had to be served onto the Minister for
Justice and on the Archivist or Notary as the case may be, which then could file for an
appeal29
within thirty days from the day of service.30
In deciding the case, the general rule
was that the CRNA proceeded in camera saving the exceptions of cases of suspension or
deprivation from office, in which cases proceedings were to be held in public.31
Remarkably, during the execution of its duties, this Court shared a number of similarities
with the Court of Magistrates of Judicial Police. In fact it shared the same registrar32
and in
execution of its orders for the adherence of the Notarial Law,33
it had the same powers of
28 In this thesis, OL refers to the old Articles of Chapter 55 from 1927 till 2011. 29
Regarding the fees payable to the registry of the Court of Appeal, Act VI of 2001 introduced Article 112A which provides that these may be established by the Minister for Justice. 30 Cap. 55, Art. 111 and 112 of the old law. 31 Cap. 55, Art. 113 of the old law. 32 Cap. 55, Art. 114 of the old law. 33 The Notarial Profession and Notarial Archives Act, 1927.
26
the Court of Magistrates.34
This similarity however could be seen from two opposite
viewpoints, being that the Legislator wanted to give so much prominence to this newly
established CRNA that it desired that this Court shares the same tools of the COM or it did
not want to give the CRNA its own autonomous character as a Court of Law but wanted it
to be a branch of another Court.
However an essential power granted solely to this Court is that which is envisaged in
Article 126 of the OL. In the case of death, cessation, suspension or incapacitation of a
Notary or in default of the appointment of a keeper in the absence of a Notary from Malta,
on information given by anyone the Court had the ex officio power to order the seizure of
the acts, registers and indexes in his possession and deposit them in the Archives. This
power is likewise extended to a case where although a Notary has not been incapacitated
yet, still the Court has sufficient reasons to believe that he is unable to perform his
functions due to insanity or any other infirmity. Moreover, in order to enforce any seizure
of acts ordered by the Court, it had the power to order a search in any place where it has
reasonable belief that acts, registers and indexes might be found.35
The law also provided that whoever possesses acts or registers of deceased or absent
Notaries or knows that similar acts or registers are in the possession of others, shall be
bound to notify the Court against the penalty of a fine (ammenda) not exceeding five
pounds sterling.36
However, considering the gravity of such omission, this amount37
is
considered to be rather ridiculous. In fact, this was eventually increased.38
34 Cap. 55, Art. 113 of the old law. 35 Cap. 55, Art. 126 of the old law. 36 Cap. 55, Art. 127 of the old law. 37 By Legal Notice 408 of 2007, this amount was converted into €11.65. 38 By Act XXIV of 2011.
27
2.3 The Inspection of Notarial Acts, Registers and Indexes
Besides having the power to inspect the acts, registers, books and indexes of the Notary of
any period,39
the Court was also empowered to carry out a general inspection which
occurred twice a year, one from the first of May, while the other from the first of
November.40
This general inspection had the objective of ensuring that the law was
observed in so far as the drawing up and preservation of the acts, registers and indexes is
concerned and that stamp-duties had been collected.41
As opposed to the case of an inspection of the Archives or of the Public Registry, the
Notaries were called upon by means of a formal subpoena issued in the name of the Court
at least fifteen days before the date fixed for the inspection.42
The Notary was obliged to
appear either personally or by means of a special attorney. If the Notary did not appear
when subpoenaed by the Court, the latter was empowered to issue a warrant of escort
against him and order the seizure of the acts, registers, books and indexes which he was
ordered to produce in the first place.43
The subpoena had to contain the acts, registers and
indexes which the Notary was bound to exhibit and the day and hour on which he had to
appear. Once the Notary produced them, the Court would carry out their inspection.44
By
Act II of 1983, another sub-article was introduced whereby the Notary was bound to
present also the writ of subpoena to the Registrar of the Court and after that the latter would
have written on it the number of volumes produced, the Notary would retain this writ of
subpoena.45
Eventually, the registrar had to deposit the original acts together with the
respective indexes in the Archives.46
39 Cap. 55, Art. 122 of the old law. 40 Cap. 55, Art. 117 of the old law. 41
Ibid. 42 Cap. 55, Art. 120 of the old law. 43 Cap. 55, Art. 123 of the old law. 44 Cap. 55, Art. 121 of the old law. 45 Article 121 was subsequently deleted by Act XXIV of 2011. 46 Cap. 55, Art. 117 of the old law.
28
Furthermore, the CRNA was empowered to inspect the Archives, the Public Registry or the
office of any Notary without any previous notice.47
In 1946, this provision was amended in
order to include the office of the AG. Whenever the latter requested the Court to carry out
such inspection, the Court was obliged carry out this inspection. Therefore this provision
could have effect either through the discretion of the Court if it considers it necessary to do
so, or through an order by the AG, in which case the Court had no option but to execute his
orders. He could indicate to the said Court ―the day and time or the period of time on, at,
within or as from which the visits and inspections are to be made, the particular acts,
registers and indexes which are to be inspected.‖48
The introduction of the AG in this
respect can be seen as a kind of safeguard against the previous absolute Court‟s discretion
to carry out inspections without notice. While the older law specified that only the Court
had this option, by this amendment, the AG is also granted this authority. Rightly, the
Legislator took a part of the discretion enjoyed by the Court and granted it to the
representative of society par excellence so as to create a system of checks and balances. In
addition, Ordinance XXXI of 1946 introduced another sub section which specified that ―In
the case of visits and inspections mentioned in this section, the provisions of sections 112,
113, 114, 118, 120, 121, 126 and of subsection (2) of section 119 of this Act and the
provisions of section 22 of the Stamp Duties Ordinance (Chapter 68) shall apply.‖
Accordingly, during an inspection without previous notice, the Visitor had to countersign
each volume which he inspected and after that the Court had determined whether the law
was observed and stamp duties were paid, it drew up in duplicate a special procès-verbal of
the inspection. Besides, by Articles 11249
and 126, during this inspection its composition
and duties remained the same. Afterwards, its decision had to be notified to the AG and to
the Notary who had a right of appeal within thirty days from the service thereof. Regarding
an inspection to the Notarial Archives, this section made reference to Article 118.50
At the end of each inspection, the Court had to draw up in duplicate a special record of the
inspection, one to be retained by the Court and the other to be transmitted to the Minister
47 Cap. 55, Art. 115 of the old law. 48 Ordinance XXXI.1946.9. 49 The reference to Article 112 in this Section was deleted by Act XI of 1977. 50 Cap. 55, Art. 116 of the old law.
29
for Justice.51
Such record had to be signed by the Notary while the Visitor countersigned
each volume of the original acts, registers and indices of the Notary.52
Interestingly, the law
did not make any reference as to the type of inspection it was referring to and therefore it
can be safely assumed that these two Articles applied in each and every case of an
inspection whether it is a general inspection, an inspection without any previous notice or
an inspection to the Archives.53
Regarding the inspection to the Notarial Archives, Article 116 of the OL stipulated that the
Court was obliged to inspect them every year in order to ascertain whether the law was
observed. It had the power to make a special examination to ensure that the law was
respected during the service of the inspection of acts and during the issue of copies and
extracts thereof. Moreover, this special examination was carried out to confirm that the
registers, indexes and the acts deposited in the Archives were kept according to law.54
Lastly, it also checked that the premises of the Archives are kept with due care.55
2.4 The Disciplinary Punishments
The Court is empowered to award disciplinary punishments to Notaries such as admonition
and reprimand,56
fine (ammenda), suspension and deprivation of office57
which are barred
by the lapse of five years from the day on which the contravention was committed.58
Moreover, the law specifies that if these punishments are inflicted, it does not prejudice any
other punishment which is imposed by any other law.59
Therefore, notwithstanding that the
CRNA inflicts a particular punishment, this does not prejudice the criminal or civil action
against the particular Notary.
51 Cap. 55, Art. 118 of the old law. 52 Cap. 55, Art. 119 of the old law. 53 By Act XXIV of 2011 as can be seen later on in this thesis, the Legislator limited Article 118 to inspections
without any previous notice and to inspections of the Notarial Archives. 54 By Act XI of 1977, the Court was no longer obliged to check whether the Notarial acts deposited in the
Archives were kept according to law. 55 Cap. 55, Art. 116 of the old law. 56 This consists in having the Notary reproached and cautioned against committing another offence. 57 These disciplinary punishments had been the same as from 1927. 58 Cap. 55, Art. 142. 59 Cap. 55, Art. 128 and 129.
30
Furthermore, Article 130 stated that if a Notary who has been once admonished by the
Court and subsequently he contravened Article 29, which prohibits the use of et caetera
clauses, such Notary would be liable for each offence by a fine (ammenda) not exceeding
ten shillings.60
However this Article was repealed by Act XXIV of 2011.
The law also provided for a limited number of contraventions which awarded the Notary a
fine (ammenda) not exceeding five pounds. The number of these contraventions varied
during time. In fact while the original Article of 192761
provided for lesser number of
contraventions than those by the amendment of 1940,62
these situations diminished by the
1946 to 1988 amendments. Moreover, besides there being specific reference to particular
scenarios which attract a fine (ammenda), there was also a general provision against any
contraventions of the Notarial Act, which would be punishable by a fine (ammenda) not
exceeding ten shillings.
In so far as the review of acts is concerned, the law provides that if the Notary fails to
preserve the acts due to negligence or if he refuses an inspection of his office by the Court,
he shall be liable to a suspension from one to six months.63
Worse, he would be deprived
from his office if he has willfully failed to preserve the acts and the registers.64
60 Legal Notice 408 of 2007 converted the Maltese liri to Euros. 61 Cap. 55, Art. 131 provided that „The Notary or Archivist, who contravenes the provisions of article 11, of
sub-clause d) of article 12, of sub-clauses a), i) and k) of article 28 and of article
33,34,35,36,42,51,54,56,60,64,65,96,100,101,102,103,104 and 107, is liable to a fine (ammenda) not
exceeding five pounds sterling.
The Notary who contravenes any other provision of this Act is liable to a fine (ammenda) not exceeding ten
shillings.‟ 62 Cap. 55, Art. 131 provided that „(1) The Notary or Archivist who contravenes the provisions of section 11,
paragraph (d) of section 12, paragraphs (a), (i) and (k) of subsection (1) of section 28, sections 34,35,36,37,38
and 44 paragraph (a) or (b) of subsection (1) of section 52, and sections 53, 56, 58, 62, 66, 67, 98, 102, 103,
104, 105, 106 and 109, shall be liable to a fine (ammenda) not exceeding five pounds. (2) The Notary who contravenes any other provision of this Act shall be liable to a fine (ammenda) not
exceeding ten shillings, provided that any Notary who during his suspension or incapacitation, issues any
copy or extract shall be liable to a fine (ammenda) from five to twenty pounds. ‟ 63 Cap. 55, Art. 132. 64 Cap. 55, Art. 138.
31
3.1 A Concluding Observation
It is clear that the system of inspection has undergone numerous legislative changes from
its inception which were crucial in evolving it to cater for the ever increasing problems in
this area. In fact a system which remains the same for a number of years, will reduce its
efficacy until someday it will become obsolete. Therefore every area of law needs to be
changed, improved and evolved in parallel to changes in society and circumstances and if
this is not respected, consequences will follow. Hence an effective and efficient system of
review needs to take a dynamic approach.
It is correct to state that the Legislator introduced a number of important amendments
between 1927 and 2011 in order to improve the system but in practice, were these
amendments enough? Were these changes made at a time when the problems have
increased so much that they were impossible to control? This is what will be discussed and
examined during the next Chapter.
32
CHAPTER 2
HOW EFFECTIVE WAS THE PRE-2011 SYSTEM OF
REVIEW OF NOTARIAL ACTS?
In order to be able to answer this question first one needs to examine this subject from its
practical point of view and bring to light its consequences. Besides, if it resulted that the
system was defective, then it is paramount to identify and address its pitfalls as otherwise it
would remain the same with all its shortcomings negatively effecting society. While the
first step is of understanding the working of the review of notarial acts,65
the second stage
involves identifying its defects and proposing solutions for the future. Therefore, one needs
to examine what these defects were and what were the Legislator‟s suggested remedies.
1.1 A Practical Perspective
The old law provided for a system of review which leaves a lot to be desired. While after
reading the old provisions, one may be tempted to jump to the conclusion that the old
system was an effective one, still one need to examine and analyse the system from its
practical point of view.
At the core of the old system was the anomaly that a Visitor had to be a Judge or Magistrate
in office. From this fact, the leading consequence was that the Judges and Magistrates
already had a lot of work to do in so far as their current calling and when the Legislator
added the inspections of acts to their duties, some of them felt it difficult to catch up with
the latter occupation.66
On this point, it is essential to bear in mind that the effectiveness of
the review largely depends on the type of inspection which the Visitor performs, meaning
that if the Visitor does not carry out his functions in the most efficient manner, the review
65 Which was previously discussed in Chapter 1. 66 Interview IV 11; Parliamentary Debate of 8th June, 1999 (Sitting No. 116).
33
will not be satisfactory.67
This means that the best review would be the one carried out by a
person who can solely concentrate on this function and clearly the fact that a Visitor was
also a sitting Judge or Magistrate, affected the quality of the inspection and thereby the
review in general. Thankfully, this was remedied in 2001 when the Legislator intervened
and specified that the Judges or Magistrates had to be retired ones.
Besides, this system did not make any distinction between acts inter vivos and wills.
Impliedly it meant that the Judges or Magistrates and advocates as Visitors were entitled to
inspect also wills. Yet, should practicing advocates and legal procurators be entitled to
inspect these confidential acts? It is crucial not to underestimate the importance of the
secrecy intrinsic to these acts. Therefore one needed to establish a balance between a
correct inspection of these acts without there being a possibility of their secrecy being
disclosed. Perhaps the best approach to this difficulty was to appoint a separate official who
is trustworthy, professional and whose functions are of inspecting wills only.
Another setback was the number of Notaries against the number of Visitors. At the
beginning, the old system seemed to be functioning properly as there were few Notaries but
eventually when they increased in number especially from the 1980‟s onwards and
concurrently the Visitors dropped from about eight to four in number,68
it resulted in
difficulties because as stated by Hon. Jose Herrera “Meta n-nutara f‘Malta kienu
jammontaw għal madwar żewġ tużżani c-chances li wieħed jiżgarra kienu inqas, imma
meta jkollok pluralita‘ c-chances li wieħed jiżgarra jikbru…”69
Therefore, at the time when
Notaries increased and therefore the chances of mistakes likewise amplified, there was the
need of an effective supervision which was however circumvented by lack of Visitors.
An additional problem was the lack of adequate salary for the inspection of acts. Naturally,
the Visitor was not encouraged to carry out the inspection as it took until 1979 for the
Legislator to intervene and to give them compensation for their work. Nonetheless, as from
67 Interview III 1. 68 Interview IV 2. 69 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387); The greater the number of Notaries, the
greater is the likelihood of mistakes.
34
1979 the salary was very minimal as it amounted to approximately fifty cents70
per act71
and
therefore the problem of satisfactory remuneration still existed. Ultimately, this reflected in
a reduced quality of the review.72
Furthermore, the law provided that the onus of ordering the inspection of acts was on the
Court and not on the Notary himself.73
The Court itself had to inform the Notary by means
of a subpoena to produce to the Court the acts for the inspection and if he fails it was
empowered to order their seizure. Therefore, if the Court did not ask a particular Notary to
present the acts for inspection, the Notary was not obliged to call upon the Court in order
for the inspection to take place.74
In practice, this had huge repercussions because this
meant that the inspection largely depended on the will of the Visitors. On the other hand,
the Notary could out of his own free will, demand that a Visitor inspects the acts and there
were no limitations as to whom of the Visitors he could engage.75
In fact, in the vast
majority of cases, Notaries contacted the same Visitor each time and as a result, there was
the probability that a certain degree of excessive familiarity cropped up between the Notary
and the Visitor which eventually jeopardized the inspection.76
Another contributing factor to the old system‟s ineffectiveness can be seen from the Court‟s
point of view. The CRNA lacked effective administrative penalties which if they were in
place, they would have helped the system of supervision to function properly. As it is
discussed later on in this Chapter, there were few Notaries who abused from the system
because of the reason that there was no real and efficient enforcement mechanism in place.
These cases should have been controlled and suppressed by this Court but since it did not
have the necessary powers and enforcement procedure it was all bark and no bite. The end
result was that the general public suffered from abusive acts done by these few Notaries.77
70 Lm0.50c 71 Parliamentary Debate of 8th June, 1999 (Sitting No. 116). 72
Interview III 2; Interview I 2; Interview II 7. 73 Interview III 2. 74 Ibid., 4. 75 Ibid., 5. 76 Interview II 2. 77 Parliamentary Debate of 3rd October, 2011 (Sitting No. 387).
35
Due to these shortcomings, in the 1970‟s the system started to collapse. There were
Notaries who did not give to the Court the registers, acts and indexes for inspection and
consequently were not deposited in the Archives. Hence they remained in their possession
without being inspected. What is most worrying and perturbing is the fact that accordingly,
the original acts and the registers were kept under the same roof and if a disastrous event
occurred, both the originals and the registers would have been destroyed.78
As properly
stated by Hon. Josè Herrera;
―Kieku ma jezistux il-kuntratti, wieħed jibda jikkonfondi u jgħid: Minn jaf
ta‘ min hi t-tali dar, min jaf jekk hemmx testament, min jaf jekk hemmx wirt!
Dawn huma kollha affarijiet vitali għall-ħajja socjali, ekonomika u
finanzjarja tal-pajjiż. Għalhekk l-atti mhumiex xi ħmerija imma jiddefinixxu
l-ħajja ta‘ pajjiż.‖79
Definitely this was the most alarming and dreadful consequence of the previous inefficient
system of review. Both the original and the register cannot be kept in the same place
because otherwise the Notary would be endangering the social, economic and financial
aspect of the State. Another consequence stemming from this problem was that if a person
wanted to obtain a copy of a public deed, he was forced to resort to the Notary since both
the original and the register were kept by him and the Notary could abuse from this
situation and refuse to issue the copy. Although this event was rare, yet it was possible and
having this likelihood was intolerable.80
Furthermore, there was the possibility that when a
Notary died, his relatives retained those important acts of the originals and their copies until
a Notary keeper was appointed. The fact that these important documents were, even
temporarily, in the hands of a person who was not a Notary, was unacceptable, especially in
the case of public wills whose secrecy could have been divulged.
To point out the seriousness of this social dilemma, in 1999 during a parliamentary debate
Hon. Tonio Borg stated that the minimum figure of notarial acts which had not been
inspected by the CRNA was around 141,660 acts. Since the law81
stated that the Notarial
78
Interview III 1. 79 Parliamentary Debate of 11th October, 2011 (Sitting No. 391); If contracts did not exist, one would be
confused. Contracts are vital to the social, economic and financial aspect of a country. Therefore contracts
define the life of a country. 80 Parliamentary Debate of 8th June, 1999 (Sitting No. 116). 81 Cap. 55, Art. 117 of the old law.
36
Acts had to be first inspected by the Court before they are deposited in the Archives, this
meant that all these acts which were not inspected were still in the possession of Notaries.82
As a matter of fact the old system of review of notarial acts failed its purpose because it
lacked efficiency and effectiveness.83
While the law stated one thing, in practice there was a
large backlog of acts which was still not inspected and deposited in the Archives.
1.2 Consequences of a Doomed System
In order to understand whether the old system of review have functioned properly, one also
needs to examine its consequences. In 2011, whilst debating Act XXIV of 2011, Hon. Jose
Herrera has put forth the following;
―...[I]l-pajjiż kellu diżordni soċjali sħiħ proprju minħabba li dawn l-uffiċjali
pubbliċi tal-ikbar importanza gerfxu f‘xogħolhom. B‘konsegwenza t‘hekk,
kellek nies li ħallsu depożiti sostanzjali fuq konvenji u dawn il-flejjes
għosfru. Kellek nies li ħallsu bolol, u dawn il-flejjes għosfru. Kellek nies, Sur
President, li marru jħallsu l-capital gains tax u l-flus li suppost kellhom
imorru għal din it-taxxa għosfru, kif ukoll kellek nies li l-kuntratt tagħhom
ma ġiex insinwat biex id-depożitu jibqa‘ xi ftit jew wisq fil-kont ta‘ xi nutar
partikolari u b‘hekk jiżdiedlu l-imgħax. Għalhekk nistgħu ngħidu bla tlaqliq
li kellna diżordni sħiħa, jiġifieri ftit nies irnexxielhom jagħmlu diżordni
sħiħa fil-professjoni nutarili.‖84
In fact there were numerous Court cases85
against Notaries who were brought before it for
different allegations which include misappropriation of funds, the negligent and wrongful
82 Parliamentary Debate of 8th June, 1999 (Sitting No. 116). 83 Interview IV 1. 84 Parliamentary Debate of 11th October, 2011 (Sitting No. 391); The State had a social disorder because of
the fact that some of these public officers made mistakes. Consequently, there were persons who paid on a
promise of sale and then this money disappeared. There were people who paid for taxes and this money
likewise disappeared. There were also persons whose contracts were not registered in the public registry in
order for the deposit to remain in the account of a particular Notary. Therefore we can say without any
hesitation that we had a complete disorder. Few individuals managed to disrupt the notarial profession. 85
Please vide the following judgments; Il-Pulizija vs. Charles Vella, Court of Magistrates (Criminal Judicature), 27th September, 2012 per M.Demicoli, Il-Pulizija vs. Silvio Hili, Court of Magistrates (Criminal
Judicature) (Gozo), 16th January, 2013, per Mag. Camilleri, Il-Pulizija vs. Silvio Hili, Court of Magistrates
(Criminal Judicature) (Gozo), 30th April, 2013, per Mag. Camilleri, Il-Pulizija vs. Silvio Hili, Court of
Magistrates (Criminal Judicature) (Gozo), 1st April, 2014, per Mag. Camilleri, Il-Pulizija vs. Sandro Schembri
Adami, Court of Magistrates (Criminal Judicature), 21st November, 2006, per Mag. Demicoli, Il-Pulizija vs.
37
exercise of the Notarial profession and the using of money given by the parties for different
purposes other than paying the relative taxes. In a nutshell, in some of these cases, the
Court decided that the Notary abused from the trust which the general public has in this
profession and rightly it specified that;
“Il-Qorti tapprezza li anke fil-kamp notarili (bhal professjonijiet ohra) in-
nutar qieghed jahdem taht pressjoni u f‘ambjent ferm kompetittiv, f‘suq
limitat u fejn l-ispejjez dejjem jikbru. Pero‘ din m‘hijiex xi gustifikazzjoni
ghal nuqqasijiet li jsiru fil-qadi ta‘ dmirijietu. Dan iktar u iktar meta wiehed
jifhem li bhala professjonist hu mistenni li jkollu sens qawwi ta‘
responsabbilta‘ u gharfien dwar dak li qieghed jaghmel u r-riperkussjonjiet
li jistghu jsofru l-partijiet, iktar u iktar mehud in konsiderazzjoni li qieghed
jaqdi funzjoni pubblika.‖86
From these judgments one concludes that the Notary enjoys a position of trust in society
and this trust element loads him with more responsibility. Indeed, as a public officer he
enjoys numerous powers which in return demands that he discharges his duties diligently.
However, notwithstanding that he is a public officer and a professional, the Notary is still a
human being and thus he is vulnerable and susceptible of making mistakes.87
This
necessitates an enforcement mechanism against these Notaries who abuse from their
position. Indeed, an effective system of inspection of notarial acts is required in order to
Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 25th October, 2007, per Mag. Vella, Il-
Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 25th June, 2008, per Mag.
Quitano, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 30th October,
2008 per Mag. Grixti, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature),1st
July, 2008 per Mag. Quitano, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal
Judicature), 5th August, 2008, per Mag. Scerri Herrera, Il-Pulizija vs. Sandro Schembri Adami, Court of
Magistrates (Criminal Judicature), 23rd June, 2008, per Mag. Demicoli, Il-Pulizija vs. Sandro Schembri
Adami, Court of Magistrates (Criminal Judicature), 25th July, 2008, per Mag. Demicoli, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature),30th November, 2009 per Mag. Grima, Il-Pulizija
vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 2nd March, 2009, per Mag. Grixti, Il-
Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 4th May, 2009, per Mag.
Demicoli, Il-Pulizija vs. Sandro Schembri Adami, Court of Criminal Appeal, 4th June, 2010, per Mag. De
Gaetano, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 3rd June, 2011,
per Mag. Demicoli, Il-Pulizija vs. Sandro Schembri Adami, Court of Magistrates (Criminal Judicature), 12th
February, 2013, per Mag. Hayman, Il-Pulizija vs. Dr. Philip Said, Court of Magistrates (Criminal Judicature),
2nd December, 2013 per M. Stafrace. 86 Edward Farrugia u Martu Lourdes Farrugia vs. Nutar Pierre Falzon, Court of Magistrates, 2nd October,
2013 per M. Scerri Herrera; The Court appreciates that even in the notarial field (like other professions) the
notary is working under pressure and highly competitive environment, limited market and with ever-increasing expenses. But this is not a justification for deficiencies incurred in the performance of his duties.
More so when one understands that as a professional is expected to have a strong sense of responsibility and
knowledge about what is making and the repercussions that may suffer the parties, more and more being taken
into account that he performs a public function.
87 Interview I 5.
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circumvent any possible abuses which is important not only to the Notary but also to
society at large.88
Besides, it is of essence that the review is not only carried out but it must
also be executed well. If there is a bad review, the ultimate aggrieved party would likewise
be the public89
as it happened in some of these judgments.
These Court judgments together with the problem of a large backlog of acts which were
still not inspected and deposited in the Archives, have prompted the Legislator to intervene.
In 1999, in order to address the problem of uninspected acts, by Act X of 1999, it
introduced the Notarial Acts (Temporary Provisions) Act.90
As the name suggests, this was
a temporary measure to collect uninspected acts which were at the Notary‟s possession and
to deposit them in the Archives.
Later on in 2011, it enacted Act XXIV of 2011 which was meant to overhaul the old system
of inspection in order to restrain abuses and to avoid similar situations to occur in the
future. However, how far did this Act go? Did it solve all the problems which the previous
system had? Did it create new ones? This Act will be analysed in Chapter 3.
2.0 The Notarial Acts (Temporary Provisions) Act, 1999
2.1 The Raison d‟Être of this Law
By Act X of 1999, the Legislator enacted the Notarial Acts (Temporary Provisions) Act,
1999 whereby a Special Commissioner was appointed with the primary duty of depositing
in the Notarial Archives all those notarial acts which were still not inspected by the CRNA.
Therefore the main concern of the Legislator at that stage was to collect these acts and not
of carrying out a detailed inspection of them. Indeed, this Act was vital for the essential
requisite of having the original acts in the Archives and the ultimate beneficiary of it is the
Notary, the State and the general public;
88 Ibid.,1. 89 Interview IV 9. 90 Chapter 408 of the Laws of Malta. This was subsequently repealed by Act XXIV of 2011.
39
“Għan-nutara din hija liġi importanti għax se tneħħi minn fuqhom ir-
responsabbilita' li jżommu kemm ir-reġistru kif ukoll l-oriġinal. Hija liġi
importanti wkoll għall-Istat għax l-Istat għandu interess li ma jkunx hemm l-
oriġinal u r-reġistri għand l-istess persuna u ħafna drabi wkoll fl-istess post,
imma tajjeb li l-oriġinal ikun f'post u l-kopja u r-reġistri jkunu f'post ieħor.
Hija liġi importanti anke għall-pubbliku għax issa se jkun moqdi aħjar għar-
rigward dawn l-għexieren ta' eluf ta' kuntratti għax ikun jista' jitlob il-kopja
mhux biss mingħand in-nutar imma wkoll, kif suppost dejjem kien, mingħand
l-arkivista tal-gvern.‖91
This law provided that the Minister responsible for the Notarial Archives was obliged to
appoint a Special Commissioner within two months from the coming into force of this Act
for a period not exceeding three years which may be extended by further periods each of
not more than eighteen months. Moreover, as the Special Commissioner was entrusted to
collect a large amount of acts and after he makes a preliminary inspection, he deposits them
in the Archives, the law also provided that if the circumstances may demand, the Minister
was empowered to appoint further Special Commissioners.92
2.2 The Appointment of the Special Commissioner
The law stated that the Special Commissioner must be either a Judge, Magistrate, a retired
Notary, an advocate, legal procurator or a public officer in Government employment not
below the rank of principal. As rightly stated in the parliamentary debate93
discussing this
law;
‗Fost il-kwalifiki li jissemmew jingħad illi dawn iridu jkunu jew imħallef jew
maġistrat. Jekk se nagħmlu hekk jien naħseb li se jkollha problema għaliex
dawn l-imħallfin jew maġistrati tant ikollhom xogħol x'jagħmlu li dawn l-
affarijiet imbagħad jibdew iqisuhom bħala sekondarji. Jiena nemmen li din
hija waħda mill-problemi prinċipali li hemm fil-Qorti ta' Reviżjoni u
91 Parliamentary Debate of 8th June, 1999 (Sitting No. 116); For Notaries this law is important because it will
remove from them the responsibility to maintain the registry as well as the original. It is also an important law
to the State because the State has the interest that the original and its registry is not kept by the same person and often also in the same place, but it is important that they are kept separately. It is also important for the
general public because it can obtain a copy not only from the particular Notary but also, as it should have
always been, from the Notarial Archives. 92 Cap. 408, Art. 3. 93 Parliamentary Debate of 8th June, 1999 (Sitting No. 116).
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għalhekk m'għandniex nagħmlu l-istess żball fil-ħatra tal-kummissarju
speċjali.‘94
One of the shortcomings of the previous system was that the Judge or Magistrate was not
obliged to retire from his profession before inspecting the acts. Likewise, in this law there
was no reference that the Judge or Magistrate had to be retired and therefore it meant that
he needed to be a presiding one. As it was previously discussed in the last Chapter the
perfect candidate for the inspection is the one who does not have any other occupation.
Thankfully, this was amended by Act VI of 2001 whereby the Judge or Magistrate was
obliged to retire from his profession before being a Special Commissioner. Regarding any
current Special Commissioner who held the office of a Judge or Magistrate, he was obliged
to cease from being a Special Commissioner. Nonetheless the amendment did not state
anything regarding a practicing advocate or legal procurator and therefore despite having a
busy occupation as an advocate or a legal procurator, he could have still held the office of a
Special Commissioner. It did not make sense to have a retired Notary or a retired Judge or
Magistrate but when it came to an advocate or legal procurator the law was silent on the
matter. As both an advocate and a legal procurator were busy in the large majority of cases,
it was best to eliminate this discrepancy and rule that any of these professionals could only
have been appointed as a Special Commissioner provided that he first retired from the other
occupation in order for him to concentrate solely on the large amount of work which the
inspection of acts demanded.
As outlined earlier in Chapter One, it is debatable whether public wills should be inspected
by the same persons who inspect inter vivos acts. Conceivably, separate officers should be
appointed in order to carry out this inspection. Nonetheless, this law did not make such
distinction between inter vivos acts and causa mortis acts,95
meaning that the Special
Commissioner had to make a preliminary inspection of public wills, with one exception. If
94 Amongst the qualifications which are referred to, there is the mentioning that he is to be either a Judge or a
Magistrate. In this case, I think that we would have a problem because these Judges and Magistrates are very busy and they would consider this as being of secondary importance. I believe that this is one of the main
problems in the CRNA and therefore we cannot make the same mistakes in the appointment of the Special
Commissioner. 95 For the purposes of this thesis, the term causa mortis act includes only wills and does not include the causa
mortis declarations.
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a public officer was appointed as a Special Commissioner, he was precluded to carry out
this kind of inspection.
2.3 The Three Different Steps
This law mainly distinguished between three different phases. Rightly, it did not oblige all
Notaries who had uninspected acts to hand them to the Special Commissioner for the
eventual deposit at the Archives because it would have resulted in having large amounts of
acts be deposited at once thereby creating a difficulty of space in the Archives. Therefore it
distinguished between two different periods, one being a facultative one whilst the other