Kanton Glarus

Principle

1 This Act regulates in the Canton of Glarus public authentication within the

meaning of Article 55 Final Title of the Swiss Civil Code (SCC) as well as

official certification.

2 It does not apply to other documents issued by authorities and

agencies in their official capacity.

3 All functional titles refer to both genders.

2. Public Authentication

### Concept

1. Public authentication is the recording of legally significant facts or legal declarations by a person authorized to do so according to Article 4, in the prescribed form and following the designated procedure.

2. This includes the authentication of individual declarations, the recording of event-related declarations, and the authentication of existing facts.

Fitness Test

1 Notaries, within the scope of their authenticating authority, must pass a fitness test before the Bar Commission.

2 The fitness test can be taken separately or together with the bar examination.

3 It provides proof of the professional qualifications.

Notaries

1 Public notarization is reserved for lawyers, as well as the Land Register

Administrator and their deputies. *

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2 Upon request, the Bar Commission appoints notaries after they have successfully passed an aptitude test. It may recognize certificates from another canton regarding the qualification of notaries, provided that the education and examinations are equivalent and the other canton grants reciprocity. Lawyers can only exercise the function of a notary if they are registered in the Glarus Bar Register. Article 38 paragraph 2 remains reserved.

3 Notaries may operate under the professional title "Notary" or an equivalent title.

4 The power of notarization begins on the day of publication in the Official Gazette.

Competence

1 Lawyers appointed as notaries by the Bar Commission are competent for all notarial acts.

2 All notaries according to Article 4 are competent for contracts establishing a land charge (Art. 799 CC).

2.1. General Provisions

Duty to Investigate

1 The notary must ascertain the existence of the notarial prerequisites and

the facts to be notarized for every notarization.

2 In particular, the notary must verify the identity, as well as the mental

capacity and capacity to act, of the persons appearing before them. The

powers of attorney of any representatives must be checked. If there are

doubts about the mental capacity and capacity to act, identity, or power of

attorney, the notarization must be refused.

3 The substantive duty to investigate relates, in the case of individual

declarations, to the content of the declaration, and in the case of factual

notarizations, to the process to be recorded or the existing facts that are to

be attested to by the notary.

4 This duty also applies if a prepared document is presented to the notary.

Duty of Care

1 Notarizations must be prepared and executed with the utmost care.

2 The notary entrusted with the public notarization of individual declarations must

specifically ensure that the will of the parties

is clearly and completely expressed.

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The parties must be instructed about the form and legal implications of a

transaction. Efforts must be made to eliminate contradictions and ambiguities.

4 A duty to advise on the part of the notary exists only with regard to the

intended public notarization.

Duty of Truthfulness

1 The public notary is bound by the duty of truthfulness when attesting to a document.

Obligation of Confidentiality

1 Notaries public as well as their employees and auxiliary persons are obligated to maintain confidentiality regarding facts they learn in connection with the preparation and execution of notarial authentications. The provisions concerning informational access to official documents under the Act on Public Information, Data Protection, and Archives¹) are not applicable.

2 Deeds prepared by the notary public, as well as reproductions of all kinds, may only be released to authorized persons.

Form of the Deed

1 The deed shall be coherent, drafted in a legible and durable script. The required signatures must in every case be affixed personally.

Nullity

1 A public deed is null and void

a. if the notary is not competent;

b. if the notary violates grounds for recusal according to Article 31;

c. if the notary was not personally present during the notarization of an individual declaration or during a record-taking, or if their presence is not notarially attested in the deed;

d. if the identity of the notary cannot be clearly determined based on the information in the deed;

e. if the deed is drawn up in one or more languages that the notary does not understand and which are not translated;

f. if the date or the signature of the notary is missing.

2 Federal provisions on public notarization remain reserved.

Duty of Retention

1 The authenticating officer keeps a register showing the authentications performed by them, the parties involved, and the date.

2 They retain an original copy of the documents prepared by them in a secure place and, in the case of documents pertaining to inheritance law, transmit a second copy to the competent inhabitants' registration office for retention and registration.

3 They shall take precautions to ensure that the register and original copies are available to a successor qualified to perform authentications. If no such successor exists, the register and original copies must be submitted to the State Chancellery for retention within six months.

2.2. Authentication of Individual Declarations

Contents and Creation of the Instrument

1 In addition to the declaration to be certified, the instrument must contain

a. Name, first name, as well as function and business address of the certifying officer;

b. the exact designation of the parties and other persons participating in the certification;

c. Place and date of the creation of the instrument;

d. the signatures of the parties or their representatives and other participating persons;

e. the certification declaration, the signature, and the seal or stamp of the certifying officer.

2 Special requirements prescribed for specific cases and types of instruments remain reserved.

3 The parties may either write the documents concerning the declarations to be certified themselves or entrust their drafting to the certifying officer.

2.2.1. Ordinary Procedure

Notarization Process in General

1 The notary must read out the deed to the parties or have them read it. If the parties declare that the deed is complete and corresponds to their mutually agreed will, the notary has the parties sign it.

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Public notarization occurs when the notary declares on the deed that it contains the will of the parties communicated to them, and that it has been brought to the attention of the parties and signed by them.

The notary signs the deed, stating the date of notarization and affixing the seal or stamp.

If, exceptionally, not all of several parties can appear before the notary simultaneously, this process must be repeated with each party. It must be stated on which day the individual persons signed. This procedure is not permissible for the notarization of contracts of enfeoffment (Verpfründungsverträge), marriage contracts, and inheritance contracts.

1. Bei der Beurkundung von einseitig verpflichtenden Verträgen, insbesondere bei der Bestellung eines Grundpfandes oder der Errichtung einer Bürgschaft, muss nur die sich verpflichtende Person vor der Urkundsperson erscheinen.

2. Zur Beurkundung von Verträgen über die Errichtung oder Abänderung eines Grundpfandes oder eines Nachrückungsrechtes genügt für den Pfandgläubiger die schriftliche Erklärung.

Attestation without Signature or with a Blind Party

If a party declares that they cannot sign, or if they are blind, a witness must be called.

The authenticating officer must read the document aloud to the parties in the presence of the witness. Thereupon, the party must declare, in the presence of the witness, that the document contains their will.

The witness must confirm the reading by the authenticating officer and the declaration by the party on the document with their signature.

1. Ist eine Partei taub, stumm oder taubstumm, so hat sie auf der Urkunde unterschriftlich zu bestätigen, dass sie die Urkunde gelesen hat und dass diese ihren Willen enthält.

2. Kann die Partei nicht selber lesen oder nicht unterschreiben, so ist ein Sachverständiger beizuziehen. Dieser hat der Partei den Inhalt der Urkunde zur Kenntnis zu bringen und auf der Urkunde unterschriftlich zu bestätigen, dass ihm die Partei mitgeteilt hat, die Urkunde enthalte ihren Willen.

Translation Procedure

1. If a party is not proficient in the language in which the instrument is drawn up, the public notary must translate the instrument.

2. If the public notary does not undertake the translation personally or if a party requests it, a translator must be engaged. The translator must translate the instrument and the declaration of the party concerned that the instrument contains their will; the translator must confirm in writing on the instrument, by signature, that they have conscientiously translated the content of the instrument and the declaration of will of the party concerned.

Common Provisions

1 The reason for involving a witness or expert must be recorded in the document.

2 For the involvement of witnesses and experts and their recusal, the corresponding provisions of the Code of Civil Procedure shall apply mutatis mutandis. Provisions of federal law remain reserved.

2.3. Recording of event-related declarations

Content and Preparation of the Instrument

1. The instrument concerning the recording of declarations related to an event must contain, in addition to the ingress, which shall include the name, first name, and office or domicile of the certifying officer

a. Place and date of the event;

b. The explanations regarding the procedure made by the event manager to the certifying officer;

c. The names of the tellers and other persons appointed by the event manager who will subsequently make declarations regarding the course of the event for the record;

d. The names of all other persons whose mention is prescribed by federal law;

e. The facts relevant to the legal validity of the certification;

f. The mention of those documents whose presence at the event is necessary for valid decision-making;

g. The certification declaration, as well as the signature and seal or stamp of the certifying officer, with additional place and date of instrument preparation in the case of subsequent certification;

h. If necessary, the signatures of those persons whose declarations for the record are considered legally effective only upon their signature.

2. The certifying officer is entitled to draft the instrument, have it signed, and sign it themselves only after the conclusion of the event.

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Corporate Law Findings in Particular

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1 The public deed consists in particular of the certification by the deed

person concerning the declarations and findings required by federal law.

2.4. Certification of existing facts

1. The instrument concerning the notarisation of existing facts must contain

a. Name, first name, function, and business address of the notary, as well as the personal details of the party requesting the notarisation;

b. A precise description of the established facts;

c. The notarisation declaration, the date, and the signature and seal or stamp of the notary.

3. Official Certification

Definition

1 Official authentication consists of the attestation by the authenticating person regarding the authenticity of a signature or a hand-sign, the conformity of a copy, an excerpt or another reproduction with the original document presented, as well as the correct execution of a translation.

Jurisdiction

¹ The following are authorized to perform authentications: *

a.

lawyers;

b.

employees designated by the courts, the State Chancellery, and the municipalities;

c.

the land registry administrator and their deputies, as well as employees designated by the land registry office;

d.

employees designated by the Inheritance Authority with regard to certificates within their area of competence;

e.

employees designated by the Cantonal Conciliation Authority with regard to certificates within their area of competence.

² Employees designated by the State Chancellery are responsible for superlegalisations and apostilles.

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Applicability of General Provisions

1 Articles 6, 7 paragraph 1, 9 and 11 apply by analogy also to attesta-

tions.

2 The duty of inquiry relates only to certifications of signatures and trans-

lations.

Authentication of a Signature or a Mark

1 A signature or a mark may only be authenticated if the signature or mark is

affixed in the presence of the authenticating person or acknowledged by the

person concerned as their own.

2 Representation for the acknowledgment of a signature is permissible if a duly

issued and authenticated power of attorney for this purpose exists.

Other Certifications

1. When certifying a copy, an excerpt or another reproduction, the certifying person must personally ascertain its conformity with the original document presented.

2. For the certification of a translation, the certifying person must consult an expert if they do not sufficiently understand the foreign language.

Form

1 The certification is made by an appropriate endorsement, which must be

signed by the certifying person, stating the place and date, and affixed

with the seal or stamp.

2 For the certification of signatures, the name, first name, and date of birth,

as well as other information necessary for the identification of the person,

must also be provided.

3 When experts are consulted, Article 19 shall apply mutatis mutandis.

4. Common Provisions for Notarization and Certification

### Oversight

1 Persons with the power of notarization and certification are subject to the supervision of the Bar Commission with regard to these activities.

2 The Bar Commission regulates the aptitude test and decides disciplinary cases as well as disputes concerning the determination of the amount of fees, honoraria, and expenses.

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Duty to Authenticate and Certify

1. Notarial and certification officers must comply with requests for authentication or certification within a reasonable period, unless

a. important reasons preclude it;

b. what is to be authenticated is legally impossible or manifestly unlawful or immoral;

c. a ground for recusal exists.

Recusal

1 The authenticating and certifying person is recused if

a. they themselves or their spouse, their fiancé or fiancée, or a person living with the authenticating and certifying person in a de facto cohabitation or in a registered partnership, is involved in the legal transaction;

b. their direct line blood relatives, their siblings or their spouses, or persons living with them in a registered partnership or in a de facto cohabitation, are involved;

c. they are an employee of the requesting party or company;

d. they are involved either as a partner of a GmbH (limited liability company), general partnership or limited partnership, or are an organ of a legal entity to which the authentication or certification relates;

e. they are the holder of the registered office of the company or a shareholder, except in the case of public companies, to which the authentication relates.

Liability

1. Freelance notaries are liable for damages arising from their notarial and authentication activities under federal civil law. They must take out adequate professional indemnity insurance as security.

2. For damages arising from the notarial and authentication activities of employees of the Canton and municipalities, the Canton is liable under the State Liability Act.

Landrat's Ordinance

1 The District Administrator issues a notarization and certification tariff and regulates the further procedure.

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Disciplinary Measures

1 In the event of a violation of this Act, the Lawyers' Commission may order the following disciplinary measures

a. a warning;

b. a reprimand;

c. a fine of up to 5,000 francs, and in the event of a repeat offence, up to 20,000 francs;

d. a temporary prohibition from acting as a notary for a maximum of two years;

e. a permanent prohibition from acting as a notary.

2 A fine may be ordered in addition to the prohibition from acting as a notary.

3 If necessary, the Lawyers' Commission may provisionally prohibit activity as a notary.

Unauthorized Use of Titles

1 Anyone who unlawfully refers to themselves as a notary or uses an equivalent

title shall be punished with a fine of up to 5,000 Swiss francs, and in case of repeat offense

up to 20,000 Swiss francs. Furthermore, a publication of the decision

in the Official Gazette may occur.

5. Final and Transitional Provisions

Repeal of Existing Law

1 With the entry into force of this Act, Articles 19–25 of the Act of 7 May 1911 on the Introduction of the Swiss Civil Code in the Canton of Glarus (EG ZGB)²⁾ and Articles 11 and 12 of the Act of 6 May 1923 on the Introduction of the Swiss Code of Obligations (Fifth Part of the Civil Code) in the Canton of Glarus (EG OR)³⁾ are repealed.

Entry into Force

1 This Act comes into force on 1 January 2008.

Transitional Provisions

1 A deed or authentication executed by an authorised person before the

entry into force of this Act is valid if it fulfils the requirements of the

previous or the new law.

2 Lawyers who, at the time of the adoption of this Act, are authorised to

authenticate in the Canton of Glarus are not required to take a qualifica-

tion examination and remain authorised to authenticate. *

2) GS III B/1/1

3) GS III B/2/1

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3 All other authorised persons within the meaning of Article 4 must take a

qualification examination. Without an examination, the authorisation to

authenticate expires at the latest four years after the entry into force of

this Act.

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