Advocacy and notary office. The concept of authenticating transactions (the most important)

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Advocacy and notary office. The concept of authenticating transactions (the most important)

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46. The concept of certification of transactions

A notary is authorized to certify transactions for which the legislation of the Russian Federation and the republics within the Russian Federation establishes a mandatory notarial form. At the request of the parties, the notary may certify other transactions.

Deals actions of citizens and legal entities aimed at establishing, changing or terminating civil rights or obligations are recognized.

Civil law highlights unilateral and bilateral transactions.

Unilateral a transaction is considered, for the conclusion of which, in accordance with the law, other legal acts or agreement of the parties, it is necessary and sufficient to express the will of one party. To conclude an agreement (bilateral deal) the expression of the agreed will of two parties or three or more parties (multilateral transaction) is necessary.

Article 163 of the Civil Code of the Russian Federation establishes that notarial certification of the transaction is carried out by making on a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them, an acknowledgment inscription by a notary or other official entitled to perform such a notarial act.

If one of the parties has fully or partially executed a transaction requiring notarial certification, and the other party evades such certification of the transaction, the court shall have the right, at the request of the party that performed the transaction, to recognize the transaction as valid.

In this case, subsequent notarization of the transaction is not required.

Compared to the previous civil legislation, the list of transactions subject to mandatory notarization has now been significantly reduced. These include, in particular: a will (Article 1124 of the Civil Code of the Russian Federation); a power of attorney for transactions requiring a notarial form (clause 2, article 185 of the Civil Code of the Russian Federation); an annuity agreement and its variety - a life maintenance agreement with a dependent (Article 584 of the Civil Code of the Russian Federation); assignment of a claim based on a transaction made in a notarial form, both on the basis of the requirements of the law and at the request of the parties (clause 1 of article 389 of the Civil Code); transfer of a debt based on a transaction made in a notarial form, both at the request of the law and at the request of the parties (Article 391 of the Civil Code of the Russian Federation with reference to clause 1 of Article 389 of the Civil Code of the Russian Federation); marriage contract (clause 2, article 41 of the Family Code of the Russian Federation of December 29, 1995 No. 223 - FZ); an agreement on the payment of alimony (Article 100 of the RF CC) and other transactions.

Before certifying a particular transaction, the notary is obliged to explain to the parties the meaning and significance of the draft transaction submitted by them and to check whether its content corresponds to the actual intentions of the parties and whether it contradicts the requirements of the law. Explaining the legal consequences of transactions made by citizens, the notary acts as a professional disinterested and impartial adviser, providing the participants in the transaction with equality of their rights and protection of interests.

Authors: Nevskaya M.A., Shalagina M.A.

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