The Notary’s Statutory Duty To Inform His Client

We just saw that the notary has a statutory duty to inform his clients about the consequences of the instrument they’re about to sign. The provisions on the notary’s duty to inform his clients are set forth in the Office of Notary Act and the Rules of Professional Ethics and Discipline of 2011 with its commentary.

According to the commentary, section 43(1) of the Office of Notary Act imposes a duty on the notary, where necessary, to inform the appearers before executing the public instrument about the consequences that follow from the instrument’s text for any of them. Nevertheless, according to Rule 5 of the Rules of Professional Ethics and Discipline said duty to inform the appearers during the legal transaction also called the “juristic act”) also applies to legal transactions that are not memorialized in a public instrument. Rule 5 provides: “The notary shall inform all the parties to the legal transaction for which they engaged the notary’s services about the consequences of the legal transaction.” 

One common example of such legal transactions not memorialized in a public instrument is a private real estate purchase agreement which in the Netherlands precedes execution of the public purchase instrument. Already at that stage before execution of the public instrument the notary has to give all necessary information to inform the parties about the consequences of their commitments, while using the opportunity to check whether any of the parties is at risk of abuse due to lack of legal knowledge or a vulnerable position.

These two circumstances of lack of legal knowledge or a vulnerable position refer to the disadvantages that may be caused by superior knowledge of the law or the language that one of the parties may have as compared to the other, especially when the other doesn’t speak the language and as a result doesn’t (fully) understand what they’re going to sign. These two circumstances arise more easily when the clients don’t speak the Dutch language, as we’ll see in the following case of an English-speaking client. Although the complaint was dismissed because the statute of limitations had run, the following case is a good example of the disadvantages that a client may have when she doesn’t speak Dutch which, in turn, may result in a lack of legal knowledge or a vulnerable position.

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