Act on Public Notarisation (Notarisation Act, BeurkG) (Beurkundungsgesetz, BeurkG) - Scope (BeurkG)

1. This law applies to

a. Transactions for which federal law requires public notarization;

b. Transactions for which parties, without legal requirement, demand the form of public notarization;

c. The creation of a public document concerning the drawing of premium bonds and lotteries, other drawings, and competitions;

d. The administration of oaths and declarations made under oath;

e. The official certification of a signature, a copy, an excerpt, another reproduction of a document, or a translation;

f. The recording of bill and check protests.

2. The law is not applied to

a. Public documents issued by authorities or officials in their official capacity;

b. The legalization of signatures by authorities, officials, and notaries of the canton of Obwalden through the State Chancellery.

1. Document Officials under the Meaning of this Law are the notaries as well as the certification and protest officers.

2. Notaries are

a. * ...

b. independent notaries;

c. * municipal notaries elected by the government council upon the proposal of the municipal council.

3. Certification Officers are

a. the notaries;

b. the certification officers of the State Chancellery;

c. the municipal clerks and their deputies;

d. the court presidents and court clerks;

e. the land registry administrators and their deputies.

4. Protest Officers are the municipal clerks and their deputies.

1. The authority to perform public notarizations in the area of the Canton of Obwalden is vested in Obwalden notaries.

2. Legal transactions involving the granting of a real right to a property located in the Canton of Obwalden can only be publicly notarized by an Obwalden notary.

1. Independent notaries are authorized to perform all public notarizations and authentications pursuant to Art. 1 para. 1 lit. a to e.

2. Municipal notaries are authorized to perform all public notarizations and authentications pursuant to Art. 1 para. 1 lit. a to e, provided that these concern real estate located in that municipality or natural persons domiciled there in accordance with civil law; exceptions are notarizations of corporate legal facts.

3. Certification officers are authorized to perform official certifications pursuant to Art. 1 para. 1 lit. e.

4. Protest officers are authorized to record protests regarding bills of exchange and checks pursuant to Art. 1 para. 1 lit. f.

1. The Notary Commission grants the notarization authority if the applicant

a. has passed the cantonal proficiency exam or holds a certificate of competence from another canton that practices reciprocity;

b. has a residence in the Canton of Obwalden;

c. provides the required security;

d. is capable of conducting legal transactions and has a good reputation;

e. is a Swiss citizen.

2. The Cantonal Council regulates the aptitude test through an ordinance.

1. Notaries who are not in a civil servant relationship regarding their certification activities must provide proof of liability insurance as a security to cover damages arising from their certification activities, which meets the requirements to be stipulated by regulation.

1. The Authority to Certify Terminates

a. upon resignation;

b. upon the loss of the abilities required for its exercise;

c. * ...

d. upon its permanent revocation;

e. upon the onset of insolvency;

f. upon the relinquishment of residence in the canton or municipality;

g. upon the cessation of adequate security provision;

h. for officials, upon departure from office.

2. The Authority is Suspended

a. upon its temporary revocation;

b. * for officials and public employees, additionally upon suspension from office as determined by personnel law.

1. The Cantonal Council regulates the procedure for the termination, suspension, and reissuance of the notarization authority by ordinance.

2. The decision becomes effective upon issuance, but for parties acting in good faith and third parties, it only becomes effective on the day following its publication.

3. The termination or suspension of the notarization authority must be published in the Official Gazette.

1. The Executive Council appoints a Notary Commission consisting of five members and the secretary for the constitutionally mandated term of office. The Notary Commission shall include experts from the cantonal court or administrative authorities, as well as at least two notaries.

2. The Executive Council determines the chairperson.

3. The Notary Commission meets in panels of three.

4. The secretary records the minutes of the Notary Commission and drafts decisions. He or she has an advisory vote.

5. The secretariat is designated by the competent department.

1. The Notary Commission serves as the examination board and supervisory authority over the public notaries.

1. Appeals can be made to the Administrative Court against the orders and decisions of the Notary Commission pursuant to the application of this law. The Administrative Court also has the authority of discretionary control, except in the case of appeals against examination decisions.

1. The Public Notary is obliged to accept and properly execute the tasks directed to them that fall within their competence, provided there is no legal reason for refusal or no justified hindrance is present. Arbitrary refusal may be subject to disciplinary action.

2. The Public Notary must refuse to notarize

a. if there is a legal reason for disqualification;

b. if they feel biased for any other valid reason;

c. if what is to be notarized is legally impossible, unlawful, or violates public morals;

d. if there are doubts about the necessary abilities of the parties or involved persons.

1. The officiating officer shall not perform duties if involved in the notarization or directly interested are

a. the officiating officer themselves;

b. a person on whose behalf the officiating officer acts;

c. anyone from the following relatives

1. * Spouse, fiancé, registered partner, or de facto life partner,

2. Relatives in a direct line, step-parents, or stepchildren, parents-in-law, son-in-law, or daughter-in-law,

3. Relatives or in-laws in the collateral line up to the third degree,

4. Adoptive parents or adoptive children, foster parents or foster children;

d. a private law legal entity to whose governing body or control body the officiating officer belongs;

e. a public law legal entity to whose administrative body or control body the officiating officer belongs;

f. a general or limited partnership of which the officiating officer is a member.

2. The ground for exclusion based on marriage remains in effect even after its dissolution.

3. The notary shall not perform duties if the document to be drafted is to be entered in a public register maintained by them.

1. Witnesses, experts, and translators must be legally competent.

2. They must not have a relationship with the parties and representatives that is listed under the grounds for exclusion.

3. The translator may simultaneously serve as a witness and an expert.

1. The Notary Public must prepare and execute the notarization with care.

2. They may only notarize what they have perceived with their own senses.

3. Notably, they must ascertain the will of the parties involved, inform them about the form and legal significance of the transaction, provide the necessary information for them to make a decision, insist on the elimination of contradictions and ambiguities, and ensure that the will of the parties is expressed clearly and completely.

4. These duties also apply when a prepared document is presented to the Notary Public.

1. The notary and their assistant must maintain confidentiality regarding their activities and any observations they make in the course of such activities.

2. Public documents created by the notary may only be released to entitled parties.

3. Exceptions to this are the obligation to produce documents and the duty to testify in an official proceeding.

1. The notary public must enter the notarization into a register and maintain a file collection.

2. The supervisory authority may inspect.

1. The notarization must be conducted with each party without significant interruption.

2. In the case of representation, a written power of attorney must be provided, which, upon request of the certifying officer, must be notarized.

3. If multiple persons are to sign a document, the signing does not need to occur simultaneously. Until all have signed, each signature is revocable.

4. When the document is signed by all parties involved, the certifying officer shall personally affix their signature along with the location, date, and stamp.

1. If the notary public does not know a party or an interested third party, they must ascertain their identity in an appropriate manner.

2. The notary public must obtain, as reliably as possible, knowledge of the ability and authorization of the parties and their representatives to make declarations in legal transactions, as well as the presence of the necessary attributes in interested third parties. They may request appropriate certificates.

1. The public deed must contain all essential elements of the transaction, in particular

a. the precise designation of the parties, representatives, and ancillary persons, as well as the name and first name of the certifying official; in the case of representation, an indication of how the authority to represent was evidenced;

b. the reproduction of the declarations made by the parties to be certified;

c. in transactions involving real property, precise details of the property according to the most recent land register extract, references to an existing mutation plan, and the reconciliation of limited real rights, reservations, and notes;

d. the place and date of the execution;

e. the signatures of the parties;

f. the certification wording, the seal, and the signature of the certifying official.

2. If contracts are supplemented by plans or other graphical representations, these must be signed by the parties and dated and signed by the notary, as well as affixed with the notary's seal.

1. If the parties wish to make amendments to the document presented to them, these must be made in the margin, within the text, or at the end of the document. The notary must sign each individual amendment and incorporate it into the attestation clause in such a way that it clearly covers the amendment.

2. If amendments are made after the attestation has been completed, they require the written consent of the affected party and additional attestation.

1. The notary shall fully inform the parties of the document. The notary may either read it aloud or allow the parties to read it themselves.

2. The notary shall certify with their signature that the parties have been informed of the document, that the document corresponds to the will communicated to the notary by the parties, and that the parties have signed the document in the presence of the notary.

1. The Document on the Resolutions of the Meeting must contain the following information

a. The place, date, and time of the meeting, the name of the company, the chairperson of the meeting, the minute-taker, and the vote counters;

b. The determinations of the chairperson regarding the lawful and statutory convening of the meeting, the number of participants and the rights represented by them, the quorum of the meeting, as well as any objections to these determinations;

c. In the case of votes, the ratio of votes and the resolutions passed in full wording;

d. Motions and further statements by participants whose certification is requested;

e. The signature of the chairperson of the meeting and the minute-taker;

f. The signature of the certifying officer with a certification that they attended the meeting.

2. The certifying officer can also serve as a vote counter or minute-taker.

3. The certifying officer is entitled to draft the document only after the conclusion of the meeting and to sign it after obtaining the signatures of the chairperson of the meeting and the minute-taker.

1. The Public Deed Concerning Corporate Legal Determinations (Art. 734, 764 para. 2, 788 para. 2, and 874 para. 2 CO and Art. 83 para. 2 CRD) consists of the certification by the notary that the requirements demanded by federal law are met according to their findings or the documents submitted to them.

1. The official document concerning the drawing of prize bonds and lotteries, other drawings, and competitions must contain

a. the personal details of the organizer;

b. the personal details of the participating individuals;

c. the location, date, and time of the commencement of the event;

d. the description of the proceedings that occurred before the notary and the findings made by the notary;

e. the time of conclusion of the event;

f. the signature of the notary along with the certification that they participated in the event from start to finish.

2. The notary is entitled to draft and sign the document retrospectively.

1. The administration of oaths and declarations in lieu of an oath is only permissible if it is required to protect rights abroad.

2. The party to the deed must sign the deed and swear or declare in lieu of an oath that the content of the deed is true.

3. The notary must certify that the party to the deed has sworn before them or declared in lieu of an oath that the content of the deed is true.

1. The official certification of a signature consists in the attestation that the signature was affixed in the presence of the certifying official or was acknowledged by the person who affixed it as their signature. The same applies to the official certification of a hand sign.

1. The official certification of a copy consists of the confirmation that it corresponds with a document presented to or produced by the certifier. The same applies to copies or excerpts from a document.

1. The official certification of the translation of a document consists in the certifier attesting that the translation is accurate.

2. If the certifier does not personally carry out the translation, they shall engage a translator. The translator must confirm the accuracy of the translation by signing it. The certifier must appropriately supplement the certification as stipulated in paragraph 1.

1. If a party declares that they are unable to sign, or if they are blind, two witnesses must be present.

2. The notary public shall read the document aloud to the parties in the presence of the witnesses. Thereafter, the party shall declare in the presence of the witnesses that the document reflects their intentions.

3. The witnesses must confirm the reading by the notary public and the declaration by the party by signing the document.

4. The notary public must certify that the procedure was followed as described.

1. If a party is deaf, mute, or deaf-mute, they must confirm by signature on the document that they have read the document and that it contains their intention.

2. If the party cannot read or sign themselves, an expert must be consulted. This expert is to convey the contents of the document to the party and must confirm by signature on the document that the party has informed them that the document contains their intention.

3. The notary must certify that this procedure has been followed.

1. If a party is not proficient in the language in which the document is drafted, the notary shall translate the document.

2. If the notary does not personally undertake the translation or if a party requests it, a translator must be engaged. The translator is required to translate the document and the declaration from the concerned party that the document reflects their will; they must also confirm by signature on the document that they have conscientiously translated the content of the document and the declaration of intent of the concerned party.

3. The notary is required to certify that the aforementioned procedure was followed.

1. A fee is to be paid for the notarization. Several parties are jointly and severally liable for this.

2. The fee includes the charges and reimbursement of expenses, which are regulated by the Cantonal Council through an ordinance.

1. For the financial liability of the public officer, the provisions of the Code of Obligations apply mutatis mutandis.

2. If the public officer is in an official or service relationship with the canton or a municipality, the local authority is liable in accordance with the cantonal liability regulations.

1. The Notarial Commission may issue binding instructions to notaries both generally and for individual cases.

**1. If a public notary breaches their duties or otherwise behaves improperly, the supervisory authority shall take disciplinary action against them.**

**2. Disciplinary measures include:**

a. Reprimand;

b. Fine up to CHF 1,000;

c. Suspension of authority for up to five years;

d. Permanent revocation of authority.

**3. The authorities of the canton and the municipalities must report any serious breaches of duty by public notaries, which they become aware of in their official capacity, to the supervisory authority.**

1. The type of disciplinary sanction is determined, taking into account the past behavior of the notary, according to the seriousness of the violation.

2. If the circumstances justify it, different disciplinary sanctions may be combined.

3. Disciplinary liability exists irrespective of criminal proceedings or a liability process.

4. Disciplinary offenses become time-barred one year after their discovery and five years after their commission.

1. Public notaries and resident attorneys with a license to practice in the Canton of Obwalden, who are already active in the canton at the time this law comes into force, are exempt from taking the notarization examination.

2. However, with the exception of attorneys and the official notary and their deputy, they only receive the limited notarization authority in accordance with Art. 4 para. 2 of this law.

3. Existing public notaries and attorneys who wish to retain or claim their notarization authority must notify the High Court within one year and provide proof of the security required by the new law.

4. Attorneys who, at the time the law comes into force, hold a public office can also submit this declaration within one year after leaving public service.

1. Provisions that conflict with this law are hereby repealed, particularly Articles 7 to 15 of the Act concerning the Introduction of the Swiss Civil Code of April 30, 1911.

1. The Cantonal Council issues the necessary regulations for the implementation of this law by ordinance.

1. The Executive Council shall determine when this law comes into force.