If You Speak Neither Dutch Nor English It’s Always Better To Engage A Sworn Interpreter Who Speaks Your Mother Tongue To Interpret At The Notary’s Office.

It’s important to emphasize that the official language of the Netherlands is not English but Dutch. Because the Netherlands’ official language is Dutch, most notaries don’t have a proper command of the English language, let alone legal English. However, the language of notary instruments (deeds, wills etc.) is legal Dutch. In the Netherlands it’s very hard to find the perfect equivalent in English legal. If your mother tongue isn’t English and you use a translation in English, you’re doing a double translation: first from Dutch to English, with the risk of misunderstandings because English isn’t the official language, nor that of public instruments, and second from English to your mother tongue in your mind, with the risk of misunderstandings because English isn’t your mother tongue. With this in mind, let’s have a look at the following complaint which shows why it’s always better to use a sworn interpreter for your mother tongue.

In this complaint the complainant, who speaks neither the Dutch nor the English language, claims she and a friend went to the notary’s office to sign a € 190,000 guarantee to help the friend’s mother to purchase a home (¶ 3.2). While the complainant was still in the waiting room, her friend and the notary were talking in another room. After a while, the notary enters the waiting room asking the complainant whether she understands English. She answers in the affirmative and is requested to sign a power of attorney, not a guarantee.

About a month later (¶ 3.3) the complainant is arrested on suspicion of money laundering, uttering forged instruments and fraud. It wasn’t until after the arrest that she finds out that she and her friend’s mother were the registered new owners of a home with a mortgage liability of € 920,000.

The complainant, who speaks neither the Dutch nor the English language, complains that the notary breached sections 42 and 43 of the Office of Notary Act (¶ 3.4) because she wasn’t assisted by an interpreter when executing instruments with the notary. The complainant was interviewed twice in a criminal investigation into the transaction in question before the notary. The complainant wasn’t sure what exactly the power of attorney she was supposed to sign said. The notary had not informed her at all about the power of attorney before she signed it, nor about the consequences of the legal transactions stated in the power of attorney. The complainant wasn’t even given a copy of the power of attorney.

The touchstone for analyzing these complaints (¶ 5.8) is the rule that the notary has the duty of due diligence to do whatever is required to ensure that the legal consequences of the legal transactions memorialized in the public instrument come into effect. Because third parties participating in public transactions must be able to rely on the public instrument, the notary must perform this duty, not for just the participants in the legal transactions stated in the public instrument, but for all interested parties.

This duty of due diligence has multiple aspects (¶ 5.9). For example, when executing a public instrument, the notary must ascertain that the public instrument actually expresses the will of the parties. The notary must verify whether the legal consequence of the legal transaction to be formalized is really what the parties want. Additionally, the notary must inform the parties about the legal consequences of the legal transaction they want to effectuate. All these aspects require as a prerequisite that the parties have an adequate command of the language in which the instrument is written such that when they read it, they understand its text, which often is complex, and that they have an adequate command of the language that allows them to communicate with the notary so that the notary can perform his official duties.

In its ruling (¶ 5.10) the Board of Ethics gave much weight to the probability that the foreign complainant did not understand the English language sufficient to satisfy the aforesaid requirements. The Board of Ethics gave much importance to the fact that the police had interviewed the complainant twice during the criminal investigation. The police did find it necessary to engage an interpreter for her mother tongue. The notary in his defense claims that the complainant had stated to the police that she “speaks a bit of English.” However, on that same occasion the complainant also told them that she couldn’t read English, which in itself is cause to engage an interpreter for her mother tongue. In fact, in general “a bit” is not enough to understand the implications of a power of attorney as complex as the one at hand.

The Board of Ethics further held (¶ 5.11) that the power of attorney at hand had very serious consequences. By signing it, the complainant locked herself into a contract involving a very large sum (a mortgage of EUR 920,000) in favor of a third party (her friend) who had implicated her in the criminal investigation. Furthermore, the power of attorney was very general and didn’t mention any sum, not even the purchase price nor the amount of the mortgage loan.

Moreover, the notary thought the transaction was very peculiar: a mother and her daughter-in-law buying a house worth almost a million Euros. For that reason, the notary was under a duty to exercise much care and caution in verifying the identity and command of the language of the person who was holding herself out as a party in the instrument.

The notary’s statements show that she was convinced that the complainant had understood the instrument’s contents, sufficiently understood the English language and, as a result, assistance of an interpreter wasn’t necessary (¶ 5.17). Nevertheless, the Board of Ethics couldn’t verify the basis for her conviction, because it hadn’t found any nor had the notary demonstrated any basis or corroboration. For these reasons, the Board finds for the complainant concluding that the notary should’ve made sure that the complainant had understood the commitments she had undertaken by signing the power of attorney (¶ 5.21). According to the Board of Ethics, because this instrument had very serious consequences, the transaction was unusual and the notary received all the instructions and correspondence from someone other than the complainant (her friend), the notary had a heightened duty of care.

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