Section 42 of the Netherlands Office of Notary Act provides that instruments must be executed before a notary in the Dutch language. Whenever a signatory does not fully understand the language of the instrument, assistance of an interpreter who, where possible, must also be a sworn translator, is required to translate the main points of the instrument.

In the Netherlands the Board of Ethics for notaries is the competent authority for complaint proceedings against notaries for ethics violations. The Board monitors compliance with the Office of Notary Act, including compliance with section 42 which requires notaries to engage an interpreter for any client who needs to execute documents but doesn’t understand Dutch.

The Notary’s Responsibilities

The “appearer” is the person executing, or signing, the instrument in the presence of a notary. The notary has a statutory duty to determine whether the appearer sufficiently understands the language of the instrument and the information the notary gives about the instrument, which generally is the Dutch language. The notary also has the duty to give information about the instrument, such as its legal consequences. Please note that it won’t suffice for the notary to have the mere impression that the appearer sufficiently understands Dutch; instead, the notary must verify and ascertain that the appearer sufficiently understands Dutch. Appearers must understand what exactly they’re signing before the notary.

The notary has the duty to explain the instrument’s text to the appearers and ascertain that they’ve understood it. According to Netherlands case law, the notary’s duty to explain the instrument assumes more importance whenever the appearer is of age and doesn’t understand the language of the instrument. For that reason, whenever an appearer doesn’t sufficiently understand the language, assistance of a sworn translator isn’t an option but a requirement.

In the Bill for the Office of Notary Act (1993 – 1994, 23 706, A, p. 5, ¶1) the Netherlands Senate emphasized the importance of understanding and assistance of a sworn translator: “It’s important for the notary personally and also for each of the parties to the instrument that all parties fully understand the instrument. Consequently, each party (not just the party who doesn’t fully understand the language) has the right to require assistance of a sworn interpreter/translator.”

The Notary Isn’t Responsible For The Interpreter’s Errors

The party that needs the interpreter — not the notary — is responsible for engaging the interpreter. That is, the notary isn’t responsible for any mistake the interpreter makes. That’s the very reason why you yourself should take charge in finding and engaging your own interpreter and not leave it up to the notary’s office. Even though the notary’s office may financially benefit from finding you an interpreter, the notary’s office doesn’t have any responsibility at all for the quality of the interpreter’s service.

Notably, the parliamentary paper states that the parties must work out who will pay for the interpreter (Netherlands Senate, 1995 – 1996, 23 706, No. 6, p. 49). This means that, instead of leaving it up to the Netherlands notary’s office to force you to use whatever service they arrange for you, you, as the appearer, can contract and negotiate the best service and best price for you. You have the right to verify and require that the translation service offered by the notary’s office isn’t by just any random person who speaks your language a bit, but by a sworn interpreter or translator. You can choose yourself. Don’t accept anything less. Don’t accept services by self-proclaimed translators or individuals that don’t have the proper credentials and training.

The Language of The Law Is A Language In And Of Itself

This shows us how important it is to understand the language. Even in the English language legal English is a separate language in and of itself which is hard to understand even for those whose mother tongue is English. Therefore, if it’s important to understand the language, if you don’t speak the language a good translation becomes all the more important, even indispensable.

The Use Of Informal Translators Is Not Allowed

As section 42 requires the interpreter where possible to be “a sworn translator” it doesn’t allow informal translators or interpreters, nor friends or relatives who speak the language a bit or even well. Apart from the defect with informality, there’s an increased risk of incorrect translation of the notary’s information and explanation when the informal translator, such as a relative, himself has a personal interest in whatever is sought to be formalized in the instrument. The role played by the interpreter in translating the notary’s explanation is too important for informal treatment.

The statues and case law emphasize that if you don’t speak the language, a good translation becomes indispensable and assistance of a sworn translator is not an option but a duty.

If you speak English in the Netherlands

If you don’t speak Dutch but English, Netherlands case law dictates that assistance of an interpreter is required when English isn’t your mother tongue. This applies even when the notary gives his explanation in English of the instruments written in Dutch to appearers who fully understand English. The problem is determining whether they actual do fully understand English. First of all, English isn’t the official language of the Netherlands, so the number of people that sufficiently understand legal English is very limited. The vast majority of notaries and attorneys don’t speak legal English well, because they use dictionaries that aren’t made by either English-speaking lawyers or by English-speaking translator. Second, if the notary’s mother tongue isn’t English, the notary lacks the capacity to determine whether the appearers sufficiently understand English. Because the instruments are about legal matters (such as real estate, prenuptial agreements, stock transfers etc.), the notary, whose mother tongue is Dutch not English, is incapable of determining whether the appearers sufficiently understand not just English, but legal English, which is a language of its own. To understand conversational English is one thing, to explain 10 pages of a real estate purchase agreement in English is quite another.

Power Of Attorney For Dutch-Speaking Persons

If someone who doesn’t understand Dutch sufficiently, grants a power of attorney to someone of the notary’s office to execute an instrument on his behalf, no interpreter is required to execute the instrument. The notary must nonetheless ascertain that the parties to the instrument understand its contents. The same applies whenever a representative signs on behalf of company. In such case, the notary must verify whether the signing representative actually understands Dutch sufficiently.

Instruments And Other Documents In English

The notary is only allowed to execute instruments in English if he has a proper command of English. Additionally, the notary can only use documents in English or legalize the signatures therein if he properly understands English. This seems to be obvious, but this creates a significant risk and doubt as to whether the notary really understands it good enough. Although it seems to be obvious that the notary must be able to speak English well, the Netherlands has some very weird rules on this. For instance, the person deciding whether the notary has a proper command of English isn’t a native speaker of English but instead the notary himself. If this issue is raised in a complaint, the notary will have to persuade the Board of Ethics as to why he personally believes his English is good. This leaves room for the ipse dixit argument.

Conclusion

At Plus Ultra we’re very pleased to help people by sharing this information. Contact us if you want to read the referenced statutory provisions and case law in Dutch. Meanwhile, here’s an example of Dutch case law that sums up the issues we’ve been discussing above. The following is a ruling on appeal (¶ 6.3.10) on a complaint filed by a Portuguese speaking party to a real estate purchase agreement before a Dutch notary.

“Section 42 of the Office of Notary Act provides —in essence— that the instrument must be executed in the Dutch language and that whenever any appearer does not sufficiently understand the language in the instrument, an interpreter must be engaged to translate the summarized contents of the instrument. The instrument was executed in Dutch. The evidence shows the purchaser does not speak the Dutch language. This means notary 2 breached said provision by failing to engage an interpreter, which is the notary’s fault. The fact that the purchaser sufficiently understands the English language and that notary 2 explained the instrument’s contents in English to the purchaser, is inapposite.”

Plus Ultra’s Lawyer-Linguists

The conclusion is that you yourself can choose your own sworn translator to translate your documents for the notary. Being lawyer-linguists properly trained in both law and language, the translators of Plus Ultra specialize in legal translations and use their knowledge, skills and experience to deliver high-quality services to you and your notary.

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