Certifications and Notarial Deeds in English
Drafting public deeds is one of the core activities of a Civil Law Notary. An authentic document is recorded by a Civil Law Notary, who diligently follows the procedures laid down in the Notary Act and thus complies with all formal requirements. This ensures the highest possible legal certainty for all parties involved.
Public notarial deeds may either be Notarial Deeds, Notarisations of legally relevant acts or Notarial Protocols.
Authentic Documents provide evidence of the “authenticity” and “correctness” of a document. They are based on the assumption that the document originates from the person identified as the issuer (“authenticity”) and on the assumption that the content of the deed is accurate (“correctness”).
When drafting a public deed, the Civil Law Notary must comply with stringent verification and instruction requirements. When drafting notarial deeds or acts, Civil Law Notaries must establish the facts, identify the “genuine intention” of the contracting parties and lay down their findings in a legally valid form. If the parties have not already obtained legal advice the Civil Law Notary must instruct the parties on the legal meaning and the legal consequences arising from a transaction.
Notarial deeds may be designed as titles of execution (enforceable notarial deed). The enforceable notarial deed has the same effect as a court ruling without being the result of costly litigation. It is an efficient and time saving means to create a writ of execution.
Certifications and Notarial Deeds can be drawn up and executed in German as well as English by Civil Law Notaries or Candidate Notaries who are also Certified Court Interpreters for English.
Austrian law does not restrict legal transactions or documents to a particular language. Contracts are valid irrespective of whether they are drawn up in German or in another language used in Austria. The following remarks refer to the language in which a civil law notary may draw up notarial deeds/authentic acts.
Section 43 (1) Notaries Act provides that notarial deeds are to be drawn up in the national language customary in the notary’s area, and if several national languages are customary there, in one of these languages, depending on the preferences of the parties. With some exceptions, this will be the German language...
Parties to a contract with parties speaking a foreign language
If contracting parties come to the notary who do not speak German (or the language in which the notarial deed is to be drawn up), they are not prevented from drawing up a notarial deed. In order to ensure that the contracting parties can understand and approve the notarial deed, a generally sworn and court-certified interpreter for the language in question and two witnesses to the deed must be called in accordance with section 63f Notaries Act. The circumstance of the lack of language skills and the involvement of the interpreter in the notarial act must be recorded in the notarial act.
The interpreter must only be involved in the notarial act itself and not in preliminary discussions and the like. The interpreter and the witnesses to the deed must sign the notarial deed (and, if applicable, a private deed).
The interpreter must translate the notarial act for the foreign-language contracting party. This means that the interpreter interprets the notarial act in German orally (sight reading “from the page”). However, it is also possible that the interpreter reads out an already prepared written translation. In any case, the interpretation replaces the reading aloud for the foreign-language contracting party. Therefore, if there are only foreign-language contracting parties (four Italians conclude an assignment agreement, none of them speaks German), it is sufficient if the entire text of the deed is interpreted into Italian. A separate reading of the German text before the interpretation is not necessary.
At the request of a contracting party, a translation of the notarial deed/authentic act into the language of the contracting party shall be prepared by the interpreter and attached to the notarial deed/authentic act. The notary must point out this possibility. This written translation must reflect the entire notarial deed/authentic act...
Notarial Deed/Authentic Act in a foreign language
However, according to § 62 Paragraph 1 Notaries Act, recording the notarial deed in a foreign language, i.e. a language other than German, is absolutely permissible if the parties expressly request it and if the notary or his substitute who records the deed is appointed as a generally sworn and court-certified interpreter for the language concerned or has completed a course of study in translation science in the language concerned at a university. This must be explicitly stated in the notarial deed. If the notary does not fulfil the requirements of § 62 Paragraph 1 Notaries Act, he may not draw up a notarial deed in a foreign language even with the assistance of an interpreter. He may only draw up a notarial deed in German (where the parties must all speak German or the content must be translated for them by a court interpreter), which can then be certified translated.
In practice, notarial deeds in a foreign languge are quite common, especially in English. The international integration of the economy, contracting parties from abroad, but also domestic contracting parties with a view to an international market require the drawing up of notarial deeds in English. In rare circumstances they could do this even if they do not understand English at all. In this case, a sworn and court-certified interpreter would have to be called in to translate the notarial deed from English into a language that the contracting party understands. This will typically be the German language. In this case, a court interpreter who is sworn for English must be called in and translates the text of the notarial deed from English into German for the German-speaking party. This can also be the notary himself who draws up the notarial deed if he is a sworn interpreter for English.
If even one of the contracting parties does not speak English and an interpreter translates, two witnesses to the deed must be involved in accordance with § 56 Paragraph 1 lit c Notaries Act. If an interpreter (i.e. not the certifying notary) translates, these witnesses do not have to understand the language in which the interpreting takes place. If the notary translates, the witnesses must understand English and must also be present during the entire process of drawing up the notarial deed.
The entire content of the notarial deed must be recorded in the same language. A mixture of several languages contradicts the principle of the unity of the deed, which is manifested here in the unity of the language of the deed. However, it is permissible to add explanatory additions for the purpose of explanation or interpretation in another language. If, for example, the sale of a share in a limited liability company is concerned and this is translated as “share” in the English notarial deed, the German word to which the parties refer by “share”, i.e. “Geschäftsanteil”, can be written in brackets next to the English word. The same applies to groups of words and terms.
The enclosures — insofar as they are only enclosed for documentation purposes — may also be written in another language (for example, Hungarian enclosures to an English notarial deed).
If the notary is not the notary but his substitute and fulfils the requirements of § 62 Subsection 1 Notaries Act , he can draw up a notarial act in a foreign language. This ability exists irrespective of whether the notary whom he substitutes can draw up notarial acts in a foreign language. The substitute acts independently in the performance of his office. It should be noted, however, that according to § 62 Subsection 2 2nd sentence Notaries Act, the substitute must in any case attach a translation into German to the notarial deed. This translation cannot be dispensed with in the case of the substitute who draws up the notarial deed...
Notarial deed with text comparison
In practice, there is often a need to juxtapose the authentic text of the deed directly with a translation into another language. The parties are aware and accept that this juxtaposed text is merely informational and that in the event of a divergence between the authentic text and the translation, the authentic text will prevail. The parties cannot rely on the legal validity of the translation.
- 62a Notaries Act expressly permits this procedure: ‘At the request of a party, a foreign-language translation submitted jointly by the parties may be juxtaposed on the individual pages of a notarial act or notarial record with the text recognised as authentic by all parties. The foreign language translation does not have the force of an official document. The fact of the juxtaposition shall be highlighted in the respective language at the beginning of the German and foreign-language document text”.
It is also possible to juxtapose not only a translation but also a second translation in another language. For example, a German-language notarial deed could be juxtaposed with an English-language translation and a Russian-language translation. The limits of such a juxtaposition probably lie only in the readability of the notarial deed.
In order to rule out any doubt as to which language is the authentic and binding one, the notarial regulations stipulate that this must be stated at the beginning of the deed. It is not sufficient to state this at the end of the contract.
A corresponding clause could look as follows:
Language skills of the contracting parties
The contracting parties or their representatives must understand the language of the notarial deed. If this is not the case, a court-certified interpreter must be called in to interpret the notarial act into the language of the contracting parties. The reading of an already prepared translation is also permissible.
This can also be done by the notary who is also a court-certified interpreter. Reference must be made to the interpretation in the notarial deed. The notarial deed shall first be read out to the German-speaking contracting parties and then translated by the interpreter for the contracting party who does not speak German. This translation does not have to be word for word, but in the spirit of the text and can also be done by reading out an already prepared translation. The reading of an already prepared certified translation by a non-interpreter is not permitted. If no German-speaking parties are present at all, the interpretation (from the sheet) replaces the reading out.
If a notarial deed is to be drawn up in a foreign language (e.g. English) and the contracting party does not speak English, an interpreter must first be called in to interpret the contents of the deed from English into German and then an interpreter to interpret from German into the language of the contracting party. If an interpreter can be found who is sworn for both languages (English and the language of the contracting party), the interpretation can be done directly.