Advokatur Notariat

Notary

What does notary mean?

The beginnings of the independent notarial profession can be traced back to ancient times, but it was not until the 11th and 12th centuries that the notary's office gained significance in the major cities of northern Italy. In the Middle Ages, the term "notary" was ambiguous. It could refer to an ordinary clerk, possibly in a senior position as the head of a princely or count's chancellery, or to a town clerk.
Today, the canton of Bern has a free notarial profession, with the historical basis for the current concept of the notarial profession in the canton of Bern found in the liberalism of the first half of the 19th century: In 1832, shortly after the Regeneration Constitution of 1831 came into force, introducing popular sovereignty and various fundamental rights, the Grand Council passed a law that removed the certification of real estate purchase agreements from the jurisdiction of the clerks of the court and transferred it to the jurisdiction of independent notaries.

 

• the notarization of real estate transactions, in particular a purchase agreement or the establishment of real estate liens
• the establishment of condominium ownership
• the notarization of marriage contracts
• the notarization of wills and inheritance contracts
• the notarization of tax, inheritance, and public inventories
• the notarization of certifications and affidavits
• The establishment of stock corporations and limited liability companies
• The establishment of foundations
• Public documents in connection with changes to companies, namely in the case of mergers, demergers, conversions, and asset transfers

Professional duties

Lawyers have various professional duties in relation to their clients. The most important professional duties of lawyers include the duty of loyalty and the duty of confidentiality. These are sometimes referred to as the core of a lawyer's professional duties.

Lawyers, who generally operate under Swiss contract law (Art. 394 ff. OR), are also obliged to provide their services personally and to perform their profession with care and diligence (see Art. 12 lit. a of the Federal Act on the Freedom of Movement of Lawyers (short: Lawyers Act, SR 935.61)).

The object of a lawyer's professional activity is to promote the interests of other persons, with the aim of achieving advantages for another person or averting disadvantages. A characteristic feature of the legal profession is therefore the protection of the interests of others. This representation of interests is distinct from the lawyer's own interests, and the occurrence of any conflicts of interest is now regulated by law (see Art. 12 lit. c of the aforementioned Lawyers Act).

 

Examples

The following examples illustrate the application of this principle:

1. Heidi Tunichtgut is a member of a community of heirs with five heirs. Her mother's estate is to be distributed, although various advance payments have already been made. Heidi Tunichtgut instructs a lawyer to first attempt to reach an amicable agreement on the distribution of the estate (which can be done in writing) and, if this is not successful, to file a lawsuit for the distribution of the estate on her behalf. The lawyer's goal is to achieve the best possible result with reasonable effort.

2. Viktor Streit wants to get a divorce, and they have two kids from the marriage. The lawyer he hired has to sort out the following:

 

·        Settlement of pension fund entitlements, in accordance with Art. 122–124 of the Swiss Civil Code

·        Any post-marital maintenance claims between the spouses (Art. 125 ff. of the Swiss Civil Code)

·        Regulation of the possibilities for modification,

· Costs and compensation issues.

Who will have parental custody of the children and, by extension, what visitation rights and obligations exist,

·        Child support claims,

·        Regulation of all assets of the spouses, in particular with regard to real estate, securities, movable property, and claims from the 3rd pillar,

In a first step, Viktor Streit would like to reach a mutually agreeable solution that is as favorable as possible for him. If this fails due to the other party's ideas, Viktor Streit is prepared to file for a contested divorce, as the separation took place two years ago.

3. In a building with condominiums, a comprehensive renovation is to be undertaken. On this occasion, a renovation is decided upon that goes far beyond what is necessary. Mr. Ferdinand Knapp, who has limited financial resources, objects to the luxurious renovation and hires a lawyer to challenge the condominium owners' decision.

4. Max Gutmütig has given a loan to his friend Felix Rosenbaum, but Rosenbaum has not repaid it. Max Gutmütig instructs a lawyer to initiate debt collection proceedings and to remove any objections.

5. Eva Krampf runs a restaurant business and has commissioned carpenter Ungenau to furnish the premises of her dining room according to her specifications. Carpenter Ungenau does everything Eva Krampf did not want, but not what she did want. Eva Krampf instructs a lawyer to clarify the legal situation and, if necessary, to settle the matter in court.

 

 

Services

·        Transfer of real estate

·        Purchase agreements

· Assignments on account of future inheritance

·        Gifts

· Transfer of agricultural properties and land

·        Parceling, establishment of easements, building lease agreements

·        Establishment of condominium ownership and condominium regulations

·        Creation of mortgage notes

·        Marriage contracts

·        Inheritance contracts and wills

·        Formation of companies (public limited companies, limited liability companies, cooperatives, associations, foundations)

·        Amendments to articles of association and relocations of company headquarters

·        Mergers, demergers, conversions, asset transfers

· Shareholder agreements