Cryptography Reference
In-Depth Information
The first plenary meeting of the working group underlined the difficul-
ties ahead. The thirty or so people appointed by the Ministry of Justice
included no less than eight eminent law professors (six from Paris), several
notaries, bailiffs, judges, court clerks, commercial court clerks, officers of
civil status, archivists, and other lesser deities of the colorful and esoteric
French judicial pantheon. Behind the Civil Code's succinct definition of
authenticity laid a staggering heterogeneity of professions, practices, mate-
rials, and purposes, with so little in common that one member predicted
no overarching concept of electronic authenticity could emerge from such
a diverse and conflicted collection of professional interests. Discussions
over notarial acts held particular import. Though the heterogeneity of the
working group made clear that no single profession was “typical” of
authenticity, in the eyes of the public, notaries in effect symbolized the
civilist tradition of the trusted witness and its ability to confer high evi-
dential value to significant documents. As the professional group whose
existence depended entirely on its monopoly to grant authenticity over
real estate transactions, no definition of electronic authenticity could
emerge which did not meet its criteria.
The most fundamental question facing the notarial profession hinged
on the requirement for parties to physically appear in front of the notary
so that he may verify their understanding and free consent to their con-
tractual obligations. As Pierre Catala explains, “The heart of the problem
lies in the
writing
of the authentic title proper. The title draws its entire
strength from the simultaneous presence of the parties and of the public
officer .
. .
so that the solemnities required by texts can be simultaneously
accomplished. Authenticity cannot be accomplished without the physical
presence of the contracting parties before the special witness habilitated
to receive the act.”
20
Yet for notaries, the appeal of a “dematerialized” authentic act hinged
precisely on the possibility of concluding a real estate transaction without
requiring all parties to physically meet. Given European integration and
the gradual removal of obstacles to trade among member states, this
notion was widely perceived as the service that would make or break
the future of the profession.
21
Such a new contractual scene, involving
some yet-to-be-determined configuration of parties, notaries, and docu-
ments, interacting through networked devices, would bear little resem-
blance to what the profession had known before. The problem was
