Legal Responsibility of Notaries and Compensation Claims in TurkeyAt CCS Law, we try to bring light to the many legal liabilities a person can have, and one such would be the legal liability of notaries. The notary is often referred to in Turkey to help with the process of validating documents and transactions that further guarantee the legal security of an agreement and avoiding disputes. Since the notary has developed a severe legal liability for their work.
Legal Liability of Notaries
Article 1 of the Turkish Notary Law stipulates that the notarial profession is a public service established with the aim of offering legal security through the formalization of transactions. A "strict liability" regime-one for which no proof of fault would be required-applies to notaries in Turkey. This already represents a more demanding standard in comparison to the great majority of professions and underlines the key value of the profession the notary exercises.
The Notary Law makes notaries responsible for the damages from Article 162, considering the principle of no fault. In case there were omissions or failure to act on the part of the notary, defective performance, or imperfect performance, this shall give rise to liability on the part of the notary for both material and moral damage. notary liability in turkey in Turkey
Common Scenarios Resulting in Notary Liability
There are several common problems that can result in damage claims being filed against notaries. These include:
Failure to Act with Due Care: A notary fails to perform their duties with appropriate care and prudence.
Document Errors: An error or inaccuracy in the documents drawn up or witnessed by the notary.
Fraudulent Documents: The notary notarizes documents, such as sham powers of attorney or agreements, submitted based on false identification.
Required Elements of Notary Liability
Now, under the strict liability regime, a few preconditions are to be met if the liability has to find application against a notary. These are as under:
Action or Omission by the Notary: There has to be an act or omission on the part of the notary, which is, in fact, performed or not performed in the course of carrying out duties and responsibilities.
Damages: A financial or moral loss has to take place because of the said act or omission on the part of the notary.
Causation: There must be a direct link between the action of the notary and the damages. It is called an adequate causal relationship.
Under the scheme of strict liability, the plaintiff's burden of proof would be much less cumbersome. The claimant does not have to prove fault on the part of the notary. All that a claimant needs to prove is the causal link between the act of the notary and his damage.
Exclusions of Notarial Liability
Notwithstanding the principle of strict liability, there are some defences which may exonerate a notary from liability:
Force Majeure: The notary shall be discharged from any liability in the event that the damage had been caused by an irresistible act of an unforeseeable event beyond his control, such as natural disasters-fire, flood, earthquake-or serious illness.
Contributory Negligence: If it can be established that the claimant was partially or fully at fault, the liability of the notary will either be reduced or disproved.
Exclusion of Liability for Third-Party Fault: Where gross negligence by a third party who acts with primary responsibility for the damage has occurred, then the notary will also not be held liable.
If documents are forged, a notary's liability is imposed on the ingenuity of a fraudulent document. If the document were ingenious, and a prudent notary could not have detected the fraud, he may not be held liable.
Compensation Claims Against Notaries
The victims of notarial errors or negligence can claim compensation. Their claims may involve:
Material Damages: Compensation for the financial loss suffered by the individual as a result of the notary's actions.
Moral Damages: Compensation for harm not economic in nature. Examples can be damage to reputation or emotional distress.
In case the damage becomes caused by the employee, according to Article 162, the notary is allowed to be compensated by his staff.
Example: False Power of Attorney Case
One such example arises when a notary has signed off on a fraudulent power of attorney. In that regard, the Turkish Supreme Court has uniformly held that a notary is liable for the damage unless it can prove that the fraud was so complex that even a diligent check could not detect it. This means that if there was, for example, a false presentation of the power of attorney in respect of a person using a fraudulent identity card which looks real, then the notary will be liable unless one can prove that such a document's falsity could not have reasonably been detected.
Reducing Risk: The Role of Diligence
Due diligence dictates that a notary should undertake its undertaking. This means it has to conduct an identification check on the parties and true documents from their hands. To this effect, Article 72 of the Notary Law contemplates that in any transaction, there must be identification of a person's identity and desire along with the documentary truth of the document presented.
In today's context, where electronic verification mechanisms are accessible, the involvement of notaries using such facilities is an expected practice when it comes to the verification process related to identity documents, national ID cards, or vehicle registration certificates.
We at CCS Law understand the vast legal responsibilities that come with this notarial profession. We advise experts for and against notaries and those needing compensation against errors of notarial action. With extensive knowledge of Turkish notarial law, we make sure that the clients are enlightened on their rights and duties.
Any further questions about notary liability or any help needed to deal with compensation claims, do not hesitate to contact CCS Law for further advice and representation.
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice.
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