Notarial Drawing Up Versus Certification — Which Transaction Requires Which

We explain in detail the differences between notarial transactions drawn up in official form and those certified, which transactions must be drawn up in official form, and the consequences in practice, under Notaries Law No. 1512.

Notarial transactions may produce different consequences as to formality and evidential weight. In drawing up a document the notary composes the text of the transaction according to the parties' intentions; in certification the notary essentially attests that the signature on a ready text belongs to the person concerned. The correct form is determined by the validity or evidential requirement in the statute governing the transaction.

Drawing Up and Certification in the Notaries Law

Article 60 of Notaries Law No. 1512 sets out the general framework of notarial transactions. Under it, notaries carry out transactions and documents by way of drawing up or certification in order to provide legal security and prevent disputes. Transactions drawn up in official form are governed in detail in Arts. 84-89 of the Law, and certified transactions in Arts. 90-97.

In a transaction drawn up in official form the notary establishes the parties' true intentions; writes the transaction in conformity with the law, reads it to the parties, and records their declarations and signatures in an official deed. In certification the notary attests by annotation that the signature on a text prepared by the parties was affixed in the notary's presence or acknowledged by the person concerned as their own. Even in certification, however, the checks required by notarial legislation are carried out as to identity, capacity, authority to represent, intention, and the transaction's conformity with mandatory law and morality.

What Is a Transaction Drawn Up in Official Form?

In drawing up a document the notary ascertains the parties' true intentions; writes the transaction in conformity with the law, reads it to the parties, takes their declarations that it accords with their intentions and their signatures, and completes it with the date and the notary's signature. A deed so drawn up is an official deed within the meaning of HMK Art. 204 and constitutes conclusive evidence until forgery is proved. That conclusive evidential force relates to matters drawn up by the notary and occurring in the notary's presence; it does not render every factual statement in the deed incontrovertible.

What Is a Certified Transaction?

In certification the text is prepared by the parties; the notary attests by annotation that the signature was affixed in the notary's presence or acknowledged as the person's own. Under HMK Art. 205 a certified private deed may constitute conclusive evidence unless the signature is denied; the factual accuracy of the content is not treated as having been established by the notary as it is in an official deed.

The notary is not entirely passive in a certification. Within the limits of the office, the notary checks identity and capacity, authority to represent, the expression of intention, whether the transaction is contrary to law or morality, and any mandatory statutory form. An allegation of forgery may be examined not only in a separate action but also in the pending action under HMK Art. 208 et seq.

Fundamental Differences

In drawing up, the text is composed by the notary according to the parties' intentions, and the declarations and signatures made in the notary's presence are recorded in an official deed. In certification, the fact that the signature on a text prepared by the parties belongs to the person concerned is attested by a notarial annotation. Evidential weight is determined under HMK Arts. 204–205, distinguishing between the fact the notary itself established and the party's factual statement.

In certification the notary is not merely a “passive witness to a signature”; the notary performs the statutory duty as to identity, capacity, representation, intention and the transaction's conformity with mandatory rules of law and morality. There is no legal rule that drawing up always attracts a higher charge or fee, or always takes longer; the total collected and the time taken vary with the type of document, its value, the pages, copies and the examination required.

The parties cannot choose the form of the transaction merely by reference to which option they regard as “stronger”. Where the statute makes drawing up a condition of validity, certification will not suffice; where the statute regards writing or another form as sufficient, drawing up is not mandatory.

Transactions That Must Be Drawn Up in Official Form

Under Art. 89 of the Notaries Law and special statutes, drawing up in official form is required for transactions such as a promise of sale of an immovable, a contract for the sale of an immovable, an official will and an inheritance agreement. A contract of maintenance until death is as a rule in the form of an inheritance agreement; for a contract made by a state-recognised care institution in conformity with the conditions laid down by the competent authorities, written form suffices under TBK Art. 612.

Not every written transaction requires a notarial deed. A partition of estate agreement may be made in writing under TMK Art. 676; a notary is not required. Suretyship is subject to the qualified written form in TBK Art. 583, with no notarial requirement. Consent to adoption is declared before the court under TMK Art. 309. In company agreements, because of the signature procedures at MERSİS and the trade registry directorate, it cannot be said that there is a general notarial requirement for all incorporations. The form of a power of attorney is assessed by reference to the principal transaction to be carried out together with Art. 89 of the Notaries Law.

Transactions That May Be Certified

Where the statute does not require drawing up, certification of the signature may suffice; the principal form of the transaction and the authority to represent are nevertheless examined separately. The principal notarial transactions are as follows:

• Signature certification: the notary attests by annotation that the signature was affixed in the notary's presence or acknowledged as the person's own.
• Issuing copies: a copy is made on the basis of the original document or an authorised electronic record and the statutory annotation is added.
• Determination: facts such as the production of a document, a date, a warning or electronic data may be determined under the relevant provisions of the Notaries Law; this does not of itself create an intellectual property right.
• Power of attorney: the form of a power of attorney is determined by the principal transaction the agent will carry out and by Art. 89 of the Notaries Law. A single distinction of “general power of attorney certified, special power of attorney drawn up” is not reliable.
• Translation: under Art. 103 of the Notaries Law, translation from one language into another or from one script into another may be carried out.

Consequences of Non-Compliance with Form

Where the statute prescribes a form for validity and a transaction is concluded without it, the transaction as a rule produces no effect; but the sanction and the manner in which it may be raised are assessed within the framework of the relevant special provision, the nature of the transaction and the rule of good faith. Where the statute prescribes a form only for proof or for assertability against third parties, the consequence differs. It should therefore not be said that “a notarial deed always takes the place of certification”, or that all defects of form produce the same consequence.

Points to Bear in Mind in Practice

The special statute governing the transaction and the form it prescribes — for validity, for proof or for assertability against third parties — must first be determined. A notarial deed does not automatically take the place of a transaction for which the statute requires another authority or a special procedure; nor does certification validate a transaction for which drawing up is mandatory.

The parties' identity and representation documents, capacity, any need for a foreign language or interpreter, and the subject matter and value of the transaction are checked on the particular file. A high transaction value does not of itself make drawing up mandatory. The correct form is assessed together with the parties' evidential needs; there is no general rule that “when in doubt, drawing up always takes the place of certification”.

Drawing Up and Certification in the Light of Case Law

The fundamental distinction in practice is between the notary drawing up the deed directly and formalising the declaration of intent, and the notary certifying a signature on a ready text. The evidential force of an official deed applies only to the facts covered by the statute; allegations of defective intent, incapacity, collusion or forgery may be raised by proper evidence.

Charges and Fees on Notarial Transactions

The total collected may comprise charges, notarial fees, drafting or comparison fees, stamp duty, valuable paper and expenses, according to the type and value of the transaction. It cannot be said that drawing up always attracts a higher charge than certification, or that a fixed charge is always taken on certification. The tariff annexed to Law No. 492, Law No. 488 and the Notarial Fee Tariff in force at the date of the transaction apply together.

Frequently Asked Questions

Does certification render the content of a document incontrovertible?

No. It essentially confers formality as to the signature, identity and date; the factual accuracy of the content may still be disputed.

Is a notary required for suretyship?

No. The written and handwritten elements in TBK Art. 583 are required; a notary is not a condition of validity.

Is a partition of an estate carried out at a notary?

Written form suffices. A notarial deed may facilitate proof and application, but is not a general condition of validity.