An Interpreter Is Mandatory Whenever The Notary’s Client Doesn’t Speak Dutch

In this case multiple complainants filed a complaint with the Board of Ethics claiming the notary failed to engage a sworn interpreter to help them execute an agreement as they don’t understand the Dutch language.

The notary responds (¶ 4.3.1) that engaging an interpreter —as required under section 42(1) of the Office of Notary Act— is only required when executing a public instrument, not when signing an agreement. The notary’s argument focuses on the distinction between public and private instruments, that is, between public documents that in the Netherlands require execution before a notary and private documents between private individuals, such as agreements, that do not require execution before a notary. The notary adds that before the complainants signed the agreement, the notary discussed the agreement in English with them in detail.

The Board of Ethics concludes (¶ 4.3.2) that the notary failed to rebut or to rebut convincingly the complainants’ claim that they didn’t understand the Dutch language when signing the agreement.

The translation requirement under section 42(1), the duty to inform the client under section 43 and the duty of due diligence under section 17(1) of the Office of Notary Act all apply to public instruments. However, the Board of Ethics concludes that signing private instruments, such as the agreement in this case, requires utmost accuracy by the notary. Accordingly, if the notary notices that his clients don’t understand the Dutch document they’ve come to sign, it doesn’t suffice to merely show his clients the agreement consisting of many pages to have them sign it, as did the notary in this case. His clients may not have fully understood what the agreement says nor fully understood what its legal consequences are. In fact, this notary only sent the complainants a draft of the agreement in Dutch, when the notary should’ve known that they by themselves couldn’t scrutinize the Dutch draft. Consequently, the Board of Ethics holds that it wasn’t enough for the notary to personally translate the main points of the agreement into English for them at his office. Importantly, the notary didn’t claim nor prove any circumstances which prevented from postponing the execution date of the agreement in order to give the complainants time to be adequately informed about its content and to properly understand it. For these reasons, the Board of Ethics holds that the notary breached his duty of due diligence and his duty to inform his clients for which he is professionally responsible. Accordingly, the Board of Ethics finds for the complainant.

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