A public official whose main powers include administering oaths and
attesting to signatures, both important and effective ways to minimize fraud in
The origin of notaries public can be traced to ancient Rome, where a
notarius was held in high regard as legal counsel. During that era only the few
people who knew how to write were qualified to serve as a notarius. A notarius
wrote legal documents, including contracts and wills, and retained them for
safekeeping. A small fee was charged for those services, a tradition that
As colonists settled in the New World, most transactions that required an
oath or signature attestation were handled in the courts. During that period the
few notaries who existed were appointed or elected in a manner similar to the
election or appointment of judges. However, as trade with Europe began, the
demand for notaries increased because of the large number of bills of exchange
that needed to be witnessed. The authority to appoint notaries was transferred
to the states, where the secretary of state (or another nonjudicial office)
usually acted as the appointer.
In 1983 the Commission on Uniform State Laws passed the Uniform Law on Notarial
Acts (14 U.L.A. 125), which covered nearly all aspects of the office of Public
Notary, from the definition of duties to appointment policies. Today most states
use this model law as a basis for their own Public Notary statutes. These laws
vary from state to state, and the amount of power that a state gives to notaries
can depend on its history. States that are French in origin, such as Louisiana,
tend to give their notaries broad powers—almost equal to those of a justice of
the peace. In Louisiana notaries' powers include making "inventories,
appraisements, and partitions; … all contracts and instruments of writing; [and
holding] family meetings and meetings of creditors …" (La. Rev. Stat. Ann. §
California also gives notaries additional powers, allowing them to "demand
acceptance and payment of foreign and inland bills of exchange, or promissory
notes, to protest them for nonacceptance and nonpayment" (Cal. Gov't. Code §
8205 [West 1997]).
In some cases the notary responsible for a transaction has an invalid commission
because of a technicality. If the notary already witnessed and completed the
transaction before becoming aware of the problem, the transaction is still
Notaries public have two main duties that remain consistent from state to state.
Perhaps the most important duty of a Public Notary is attesting to signatures on
documents. This duty is important because it aids in minimizing fraud; signature
attestation must be done with the notary and the signatory in a face-to-face
The process of notarizing a signature is simple. The person who wants his or her
signature notarized must present sufficient evidence to prove his or her
identity and sign the necessary document. The notary completes the process by
stamping or sealing, dating, and signing the document. This face-to-face
procedure helps ensure the authenticity of the signature.
A Public Notary may also administer oaths in depositions or other situations.
Even though this type of oath may not take place in court, the witness can still
be held accountable and be punished for perjury.
In Ohio a notary can also hold an affiant in contempt if he or she is a
reluctant witness. In the U.S. Supreme Court case of Bevan v. Krieger, 289 U.S.
459, 53 S. Ct. 661, 77 L. Ed. 1316 (1933), a Public Notary held a witness in
contempt because he refused to comply with the requirements of the subpoena he
was served. The court ruled that the notary was acting within his powers when he
held the witness in contempt.
To become a notary, a candidate must complete several steps. A candidate must
fill out an application and submit it to the appropriate government agency,
usually the respective state's department of the secretary of state or the U.S.
Department of State. As part of the application procedure, the candidate must
also take an oath of office and submit a bond. The purpose of the bond is to
offer a small amount of monetary insurance in case the notary is sued. On
average, notarial bonds are less than $5,000. If a notary is sued for more money
than the amount of the bond, the notary is still personally liable for the
difference between the bond and the sum awarded to the plaintiff.
Once an application is approved and the notary is commissioned, the notary must
register in the county in which he or she resides and pay a registration fee.
The commission itself has a time limit, which can range from two to ten years,
with an average limit of four years. To renew the commission, the notary must
repeat the application process.Public Notary Los
Most states require that a notary be at least eighteen years old and be able to
read and write English. However, the latter requirement may change in the future
because of the increasing number of transactions that take place in languages
other than English. Some states require potential notaries to pass an exam as
part of the application process. Others may require a notary to keep a detailed
journal of the transactions he or she officiates.
Until 1984 many states required that a notary be a U.S. citizen or a resident of
the state in which he or she would serve as a notary, or both. However, in
Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984), the
U.S. Supreme Court ruled that requiring a notary to be a U.S. citizen was
unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
Therefore, even though the plaintiff in the case was actually a Mexican native
and longtime resident alien, it was unconstitutional to deny him a notarial
commission simply because he was not a U.S. citizen. Despite this ruling many
states have kept the U.S. citizenship requirement in their statutes.
Another challenge to the procedure for becoming a notary occurred in the case of
Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961). In
this case, an atheist objected to Maryland's Public Notary oath, which required
him to acknowledge a belief in God. When his notary commission was denied, he
sued. The case went to the U.S. Supreme Court, which ruled that, under both the
Maryland Constitution and the U.S. Constitution, it was "repugnant" for an oath
to require a belief in God.
Notaries can only be held liable for actions they take while performing the
notary function. For example, although notaries are responsible for attesting to
the validity of a signature, they are not responsible for the validity of the
document. It is not considered malpractice for a notary to attest to a signature
on a document that he or she knows is invalid.
A notary must "act as a reasonably prudent notary would act in the same
situation." In an action against a notary, the burden of proof is on the
plaintiff to show that the notary acted negligently. If the plaintiff meets this
burden, the notary can be held personally liable for damages to all parties
involved, including third parties.
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