Pravni Zapisi (Jan 2019)
Terms and conditions for the solemnization of real estate sales contract concluded in an out-of-court settlement procedure
Abstract
Public notaries act as holders of public authority and are obliged to protect the interest of legal certainty. The requirement of legal certainty is stronger than any individual request, and the public notary, as a holder of public authority, must uphold this. The public interest represents the gravitational field of any public notary operation. The legal rules governing the procedure of denying a public notary act determine the public law nature of the notary public service in a substantive manner. When assessing the fulfillment of the conditions for the solemnization of a document in each proceeding, the notary public must strictly apply the provisions of the law that prescribe the grounds for denial of an official act. The out-of-court mortgage settlement procedure is carried out without the involvement of public authorities. Such a regulated procedure is outside the logic of the execution procedure, and the notary public is the only public law entity before which a real estate sales contract concluded in an out-of-court settlement procedure is submitted for solemnization. Therefore, from the point of view of the protection of legal certainty, his role as the controller of the legality of the previously conducted out-of-court mortgage settlement procedure is further emphasized when he assesses the fulfillment of the conditions for the solemnization of a real estate sales contract concluded in an out-of-court settlement procedure. One of the conditions for the solemnization of a real estate sales contract is also the absence of a reason for denial of an official act, which the notary public must strictly examine in accordance with the rules of the law governing the public notary activity. When assessing that the aforementioned condition is not fulfilled, the public notary is required to refuse the solemnization of such real estate sales contract concluded in the out-of-court settlement procedure.
