Paper and State - Burdens of Proof - page 132

how to design it without losing the very soul of the profession — the
trusted witness and its guarantee of the special evidential value of
authenticity. 22
Alain Lambert, in an early meeting of the notarial subcommittee, stated
the official position of the profession: “The physical presence of the notary
is essential to the authentic act; thus, the consent of the parties cannot be
witnessed at a distance. If this principle must be modified to adapt the
authentic act to the electronic medium, such a modification must then
also apply to the paper media, since the concept of authenticity cannot be
different according to the underlying media of the instrumentum .”
The biggest problem such an argument faced was the fact that the
notarial profession had already sought to—and indeed, succeeded in—
breaching this principle. In the early 1970s, it had lobbied the government,
requesting the notarial contractual scene be divided in two discrete
moments, to be performed by two distinct parties. Because witnessing the
consent of the parties to the act is a lengthy process — the act must be read
to them, they must initialize each page, and so on — the profession argued
that it could be entrusted to a specially authorized notarial clerk ( clerc
habilité ), and the final signature on the act would remain the notary's
privilege, to be affixed at a later, more convenient time.
The move profoundly shocked one of France's most eminent scholars
of notarial law, Jacques Flour, who vehemently critiqued the decree. Flour
argued that “when it comes to solemn acts, there is no distinction between
instrumentum and negotium. ” 23 That is, the manufacturing of the instrumen-
tum (the record of contractual agreement) in accordance with the rules
dictating the appropriate forms, is itself the negotium , that is, a performance
with the legal consequence of binding the parties to the obligations con-
tained in the contract. And, as Flour sternly remarked, the party respon-
sible for the proper manufacturing of the instrumentum is — must be — the
notary, under penalty of authentic acts losing their special evidential value:
“The requirement of the presence of the notary has never been considered
as the vain manifestation of some mystical kind of formalism. . . . [The
authentic act]'s evidential force is explained by the fact that one can — and
one must — trust the affirmations of a public officer. The notary, as is clas-
sically defined, is a 'privileged witness.' If he does not witness the affixing
of the signatures, he is not a witness; the act can thus not be an authentic
one.” 24