NOVE Attorneys at Law Heili Püümann and Urmas Volens represented Tallinn Notary Triin Sild in a case concerning the scope of the notary’s duties (RKTKm 2-17-11283), in which the Supreme Court clarified when a notary has the right to refuse to perform a notarial act.
In the ruling the Supreme Court held that the notary not only has to verify the validity of the transaction (eg whether the transaction is in compliance with the law, good morals, whether the regulation of standard terms and conditions has been violated), but it also has a broader statutory duty of scrutiny to ascertain the purposes of the transaction. The notary must therefore seek to ensure the lawfulness of the acts to be certified, thus providing legal certainty. However, the notary has neither the right nor the obligation to settle civil disputes between the parties to the transaction. On the other hand, a notary may refuse to perform an official act only on the grounds provided by law, which means in other words that a notary may not obstruct proceedings without a legal basis.
The Supreme Court also emphasized in the ruling that a notary must refuse to perform a verification procedure if there is a high likelihood that the purposes of the measure sought are contrary to law, regulation or good morals or are unacceptable and dishonest. The application of this principle should not be limited, for example, to cases where the party itself declares to the notary, either in writing or orally, that the purpose of the transaction is dishonest. A notary’s refusal to certify a transaction presupposes that the notary has a degree of discretion on the basis of the facts which come to his knowledge, in order to protect the interests of the parties and third parties to the transaction.
To sum up, the principles established in this ruling provide notaries with the right and duty to refuse to certify a transaction if they become aware, in connection with the transaction, that the purposes pursued by the transaction are contrary to law or good morals or are unlawful and dishonest. Thus, the principles highlighted in the ruling reinforce the notary’s role as a guarantor of legal certainty and clarity.