Notarization and the Notarization Act (BeurkG): Legal Foundations, Significance, and Areas of Application
Notarization is a central element in the German legal system and refers to the formal and legally binding recording of declarations of intent, facts, or processes by an authorized official, usually a civil law notary. The Notarization Act (BeurkG) regulates the general provisions for the notarization of legal transactions, measures, and facts in Germany. Proper notarization is a prerequisite for the validity of certain legal transactions and serves in particular to protect the parties involved, ensure legal certainty, and secure evidence.
Statutory Foundations of Notarization
The Notarization Act (BeurkG)
The Notarization Act (BeurkG) is the central set of rules governing notarization in Germany. It entered into force on January 1, 1938, and has since undergone numerous amendments and extensions. The Act sets out the formal and substantive requirements as well as the procedural design of notarization. In particular, the provisions concerning preparation, execution, creation, recording, and securing of evidence are relevant.
Relation to Other Legal Norms
In addition to the BeurkG, the German Civil Code (BGB), the Act on Proceedings in Matters of Voluntary Jurisdiction (FamFG), the Commercial Code (HGB), and land register law also contain numerous provisions relevant to notarization. As a general rule, the BeurkG applies subsidiarily, meaning that specific provisions of other laws take precedence where they contain divergent or supplementary regulations on notarization.
Functions and Purposes of Notarization
Formal Requirement and Legal Certainty
In certain cases, the law requires notarization for the effectiveness of legal transactions (e.g., real estate transactions under § 311b BGB, prenuptial agreements according to § 1410 BGB, or promises of gifts pursuant to § 518 BGB). In these cases, notarization serves to protect against rash decisions, to document declarations of intent, and to uphold legal certainty.
Function of Securing Evidence
Notarization represents a particularly secure evidentiary document. The deed drawn up by a public official has high evidentiary value in legal proceedings (§ 415 ZPO). The declarations and determinations recorded therein are regarded as fully proven until their inaccuracy is demonstrated.
Warning Function
Through the personal involvement of a civil law notary and the necessary advice, those required to make declarations are made aware of the significance and scope of their declarations of intent. The warning function serves to protect against inadvertent or legally disadvantageous actions.
Procedure and Requirements for Notarization
Parties Involved and Their Participation
The BeurkG generally requires the presence of all parties involved. The public official must establish their identity (§ 10 BeurkG) and satisfy themselves regarding their legal capacity, ability to declare intentions, and seriousness. In special cases, parties may act through representatives or agents.
Recording and Content of the Minutes
The declaration to be notarized is fully recorded by the official, read aloud to the parties, approved by them, and subsequently signed by both the parties and the official (§§ 8, 13 BeurkG). The minutes must contain all essential details, in particular time, place, personal data of the parties, declarations, and any further determinations if necessary.
Duty to Advise and Obligations to Inform
A key principle of notarization is the impartial supervision of the parties by the notary. According to § 17 BeurkG, the notary must ensure that all declarations are reproduced clearly, completely, and legally correctly. Particular attention must be drawn to legal consequences and risks.
Electronic Notarization
Since the entry into force of the Act for the Implementation of the Digitization Directive (DiRUG) in 2022, the notarization of selected legal transactions can also take place electronically. Prerequisites include electronic identification, qualified electronic signature, and the use of secure IT infrastructures (§§ 16a ff. BeurkG).
Legal Transactions Requiring Notarization
Real Estate Transactions
According to § 311b BGB, the purchase, transfer, or encumbrance of real property is subject to notarization. The same applies to the creation and cancellation of hereditary building rights and other rights equivalent to real property.
Prenuptial Agreements, Divorce Settlements, Articles of Association
Prenuptial agreements (§ 1410 BGB), divorce settlement agreements, and the articles of association upon the formation of a GmbH (§ 2 GmbHG) must be notarized, otherwise they are invalid.
Promise of a Gift
A promise of a gift is legally valid pursuant to § 518 BGB only with notarization, unless the gift has already been executed (manual donation).
Legal Consequences and Significance of Notarization
Invalidity Due to Lack of Form
Violations of the notarization requirement usually lead to the nullity of the legal transaction (§ 125 BGB), unless otherwise provided by law. Subsequently obtaining notarization can render the legal transaction effective in certain cases.
Cure of Defects in Form
For some legal transactions, the law provides for remedial possibilities; for example, in the event of failure to notarize a promise of a gift, the performance of the act by the donor can remedy the lack of form (§ 518 para. 2 BGB).
Forms of Notarization
Notarial Notarization
Notarial notarization is the main form and is carried out by notaries as independent holders of a public office. They record the statements, ensure correct formulation, verify identity and legal capacity, and advise the parties on legal consequences.
Certifications
Not to be confused with notarization is the certification of signatures or copies, where only the authenticity of a handwritten signature or conformity with the original is confirmed (§ 39 BeurkG). There is no substantive review of the legal transaction in this case.
International Notarizations and Cross-border Notarization Cases
In international legal dealings, German notarizations can be equipped with a Hague Apostille or legalized for recognition in other countries. Conversely, foreign deeds can be used in Germany under certain conditions, provided they are authenticated and, if necessary, translated.
Retention and Register Obligations
Notarized documents are kept safely and either permanently or for specified periods in notarial archives or with the competent authorities (§ 50 BeurkG). For certain notarized legal transactions, there are also registration requirements, such as entry in the land register, commercial register, or association register.
Summary
Notarization pursuant to the Notarization Act is an essential instrument to ensure legal certainty and the protection of legitimate expectations in legal transactions. It is mandatory for a multitude of significant legal transactions and ensures, in addition to comprehensive documentation, protection, warning, and clarification for the parties involved. The Notarization Act defines the framework and substantive requirements to guarantee the effectiveness, verifiability, and legal strength of legal transactions subject to notarization in German law.
Frequently Asked Questions
What formal requirements must notarization under the Notarization Act meet?
For effective public notarization under the Notarization Act (BeurkG), various formal requirements must be strictly observed. The most essential requirement is the personal presence of all parties before the notary (§ 13 BeurkG), since the main purpose of notarization is that the notary determines the true will of the parties and advises on the legal significance of the transaction. The deed must contain the essential content of the declaration, the date, and the personal details of those present. Furthermore, the notary must read the minutes to the parties, submit it for their approval, and have it personally signed by them; the notary must also sign and affix the official seal (§§ 8, 13 ff. BeurkG). If several parties are involved, all parties and the notary must be present at the same time. Deviation from this is only permissible in narrowly defined exceptions, such as with representation accompanied by evidence of authority. If the notary violates these formal requirements, the deed may be considered invalid, regularly resulting in the nullity of the transaction.
What are the legal consequences of proper notarization of a legal transaction?
Proper notarization by a notary establishes the authenticity and evidentiary value of the notarized declaration in legal proceedings (§ 415 ZPO). The notarized transaction only becomes effective, if required by law (e.g., in real estate purchase contracts, § 311b BGB), through notarization. This means the transaction is void without notarization (nullity due to lack of form). Additionally, the notarized deed enhances the security, reliability, and traceability of legal dealings. Notarial notarization also serves as the basis for certain enforcement titles; an enforceable copy of a notarial deed can, for example, enable immediate enforcement in the case of promised payments pursuant to § 794 para. 1 no. 5 ZPO. The notary also has special liability for errors in notarization.
Can legal transactions with an international element also be notarized in Germany?
As a matter of principle, it is possible for legal transactions with an international connection to be notarized by a notary in Germany under the Notarization Act, provided that the transaction is intended to be effective within the German legal sphere. The notary pays particular attention to any foreign formal requirements and verifies whether they fulfill the protective purposes of German notarization law. In certain cases, the notary must check international jurisdiction, the applicable form statute, and any recognition requirements abroad. Notarization becomes more complicated if parties or documents are in a foreign language. In such instances, the notary must ensure proper translation and comprehensibility; if a party does not have sufficient command of the German language, a sworn interpreter must be included (§ 16 BeurkG). The document drawn up abroad is generally subject to the law of the notarizing state, unless mandatory German provisions oppose this.
What is the significance of the minutes in the context of notarization?
The minutes are the central element of notarial notarization pursuant to the Notarization Act. They provide written documentation of the complete content of the parties’ declarations, their identity, and the course of notarization (§ 8 BeurkG). The minutes not only secure authenticity, but also traceability and evidentiary value of the legal transaction. They must contain all essential information, for example, confirmation of the parties’ legal capacity, any legal warning obligations and information, as well as ancillary agreements made. The document must be preserved permanently and serves as a binding basis for subsequent legal disputes or registration in public registers (e.g., land register). Changes, corrections, or additions may only be made after signing under exceptional legal circumstances.
How is notarization handled in the case of parties with insufficient legal or language proficiency?
If parties to a notarization are not sufficiently versed legally or linguistically, or if their legal capacity is doubtful, the Notarization Act provides specific protective mechanisms. According to § 17 BeurkG, the notary is obliged to ascertain the intentions of the parties, explain the legal significance and possible risks of the declarations, and provide special explanations as required. If a party does not have sufficient command of the German language, a translation must be provided or a sworn interpreter involved (§ 16 BeurkG). In the case of serious doubts about capacity, the notary must, if necessary, refuse notarization or require special safeguards (e.g., medical certificate). This ensures that no one is disadvantaged due to lack of knowledge or comprehension and that the effectiveness of notarization is preserved.
What are the notary’s obligations regarding recording and retention?
According to the Notarization Act, the notary is required to collect and permanently retain the original documents in their registers (§ 45 BeurkG in conjunction with the guidelines of the Federal Chamber of Notaries and the respective regional Notary Chambers). In addition, copies and exemplifications must be made available to the parties, authorities, or courts upon request, whereby rights of access and data protection requirements must always be observed. The retention periods are at least 100 years for deeds with permanent legal significance (such as real estate contracts), with the periods being set by law or professional regulations. Proper recording and archiving serve legal certainty and traceability, as well as preventing legal losses by the parties.
What happens if there is a defect in form during notarization?
A breach of the mandatory formal requirements of the Notarization Act generally leads to the nullity of the notarized declaration of intent (§ 125 BGB, § 13 ff. BeurkG). Defects in form can result, for example, from failure to comply with the requirement of presence, inadequate identification, lack of reading aloud, or incomplete recording of the minutes. In certain exceptional cases, a defect may be cured, such as by full execution and completion of the transaction in land register law (§ 311b para. 1 sent. 2 BGB), if legally provided. Otherwise, the transaction remains ineffective, and any services rendered must be reversed on the basis of enrichment law. In individual cases, a defect in form may also give rise to claims for damages against the notary if culpable misconduct can be proven.
