The Notary Can’t Abdicate His Duties, Much Less When There’s An Increased Risk Of Abuse Due To Lack Of Legal Knowledge Or Vulnerable Position Because A Client Doesn’t Understand Dutch

This is another case of potential abuse due to lack of legal knowledge or a vulnerable position in a real-estate purchase where one of the parties didn’t understand the Dutch language. In a nutshell, the notary himself wrote and sent a real-estate purchase agreement to his clients, buyer and purchaser, who signed and returned it. The notary didn’t have any contact with the person who signed on the seller’s behalf nor did the notary personally verify whether that person in fact had understood the text. Although the papers are signed the deal doesn’t go through. Litigation ensues, including against the notary. See the publication in Dutch with its considerations, background and further details.

The problems started when a Dutch real estate agent asks a notary to write a purchase agreement for some country’s embassy which was represented as the seller in the sale by its ambassador who doesn’t speak Dutch. Without contacting the embassy, the notary tells the agent he’s going to write the agreement in the Dutch language and obtain a translation in the English language. The next day the agent starts to pressure the notary to finish and send the agreement. The notary responds that he has almost finished the agreement in Dutch but that it will take at least another day to get the translation in English. The agent nevertheless insists he deliver the agreement in Dutch because the ambassador has to travel the next day.

The notary then sends the agent the draft agreement but only in Dutch. Although it mentions the name of the notary’s office, it doesn’t mention it’s a draft. The agent tells the notary that he’ll read the text that same evening with the ambassador and the buyer. Because the agent tells the notary they won’t need the notary at the meeting, the notary doesn’t attend.

The next day, the agent sends the notary the document signed by the ambassador and the buyer. Without contacting the embassy, the notary then writes a draft of the public instrument memorializing and formalizing the purchase agreement.

In the end, though, the embassy decides it wants to pull out of the sale. Litigation ensues, including against the notary with the ambassador alleging misunderstandings about the draft and failure of the notary to verify whether the ambassador, who doesn’t speak Dutch, had understood the document and its consequences.

According to the Board of Ethics, the notary should’ve known that both parties would immediately sign the document the notary had sent to them. That was clear from the agent’s urgency and notice about the ambassador’s travel. The fact that the notary was surprised by the speed with which they signed, doesn’t absolve him of his duty. What’s more, he subsequently also failed to personally verify whether the ambassador had understood the document he had signed. When the notary later finally received the translation in the English language, he also failed to forward it to the parties.

The Board of Ethics concludes that the notary unduly abdicated his duties and control to others. If the notary personally writes the agreement, then generally he has the duty to inform the parties about its consequences. This duty requires the notary to inquire whether the parties have properly understood and accepted the agreement’s contents and consequences. The office of notary requires him to do his utmost to prevent abuse of the lack of legal knowledge or a vulnerable position. That’s in fact what Rule 4(1) of the Rules of Professional Ethics and Discipline requires. The notary must take notice of any special circumstances of the situation, as here where one of the clients, the ambassador, doesn’t understand Dutch well. That’s what Section 42 of the Office of Notary Act is about, even though it doesn’t apply literally.

The notary’s personal responsibility in all of these aspects is based on Rule 2 of the Rules of Professional Ethics and Discipline: including when a client wants otherwise, the notary is bound by his duty to fulfill the tasks he is required to do as a notary as part of his work for his client, including when third parties have already done part of the work.

Therefore, when he abdicates his duties — more specifically, allows an agent to perform the entire inquiry the notary is supposed to do — the notary is taking a risk that the party in question doesn’t (fully) understand a document that’s important to the party and that bears the notary’s name. In this procedure we don’t analyze whether the risk materialized nor whether it was the agent’s fault. The notary couldn’t rely on just the agent’s words, much less allow the agent to tell the notary he didn’t need to attend their meeting to sign the agreement the evening in question.

Accordingly, the Board of Ethics found for the complainant. The notary appealed the ruling but on appeal the Board of Ethics Appeals affirmed the ruling. See the publication in Dutch with its considerations, background and further details.

Let’s analyze two problems. First, the notary gives the parties only a draft in the Dutch language, even though one of them does not understand the language.

Second, the notary doesn’t attend his clients’ meeting to give explanations and answers about the text. Because the draft bore the notary’s office’s name, it was safe for his client to assume the document was the final version for signing, the more so because it didn’t mention it was a draft. The notary’s presence during signing was indispensable. It didn’t suffice to hand over a draft in Dutch nor did it suffice to hand over the draft with its translation. The notary should’ve been there to explain and answer any questions about the document.

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