Ordinance of the High Court concerning the Management of Notary Offices (Notary Ordinance)

18 1 The notary is responsible, in addition to the duties of the land registry office (§ 1 para. 1 lit. b NotG5) and the bankruptcy office (§ 1 para. 1 lit. c NotG5), as a certifying officer for

a. the public authentication of all declarations of will for which this form is prescribed or desired by the parties (§ 236 EG zum ZGB3, § 1 para. 1 lit. a Ziff. 1 NotG5),

b. the creation of public instruments concerning facts and events as well as legal relationships (§ 1 para. 1 lit. a Ziff. 1 NotG5),

c. authentications (§ 246 EG zum ZGB3, § 1 para. 1 lit. a Ziff. 2 NotG5).

2 Provisions concerning the exclusive competence of other certifying authorities remain reserved (§ 1 para. 1 lit. a Ziff. 1 NotG5).

I. Subject-Matter Jurisdiction

1. Authentications

18 The notary further handles other matters transferred to him by law or regulation or by an authority empowered by law or regulation (§ 1 para. 1 lit. a No. 3, 4, lit. d and § 5 NotG5). 2. Other business of non-contentious jurisdiction

17 To the extent that this Regulation assigns tasks to the notary,

**3. Assignment of tasks**

**they are incumbent upon the notarial office (§ 1 para. 2 NotG5).**

Zuständig zur Vornahme der Amtshandlungen gemäss den II. Örtliche

§§ 1 und 2 ist unter Vorbehalt der nachfolgenden Einschränkungen Zuständigkeit

jeder Notar des Kantons (§ 237 EG zum ZGB3).

1. Kantons-

gebiet

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1

242.2

Notariatsverordnung

2. Notariatskreis

3. Beurkundung

von Grund-

stückgeschäften

a. Grundstücke

im Amtskreis

b. Grundstücke

in mehreren

Kreisen

c. Grundstücke

in andern

Kantonen

III. Ort

der Amts-

handlungen

1. Im Amtslokal

2. Im Kantons-

gebiet

***

II. Local Competence

Subject to the following restrictions, every notary of the canton is competent to perform the official acts according to §§ 1 and 2 (§ 237 Introduction Act to the Civil Code3).

1. Cantonal

Territory

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1

242.2

Notary Ordinance

2. Notary District

3. Authentication

of Real Estate

Transactions

a. Real Estate

within the Official District

b. Real Estate

in Multiple

Districts

c. Real Estate

in Other

Cantons

III. Place

of Official

Acts

1. In the Official Premises

2. In the Cantonal

Territory

1 However, the notary should, where possible, limit themselves to official acts for persons established within their district or appearing in their office, and to transactions and legal acts that are concluded within their district or are closely connected with it.

2 Exceptions are justified in cities divided into several notarial districts, and generally, if the parties, for factual or considerable personal reasons, do not use the notary who would otherwise be competent (§ 78).

Regarding the public authentication of legal transactions concerning real rights and registrable personal rights in real estate, the notary of the district in which the real estate or a part thereof is situated is competent (§ 237 para. 2 EG to ZGB³).

The notarization of contracts concerning several properties located in different districts of the canton may be performed by any notary in whose district one of the properties concerned is situated (§ 237 para. 2 EG zum ZGB³).

Where a legal transaction to be certified in the Canton of Zurich also encompasses real properties in other cantons with which no intercantonal agreement exists, the legal transaction as a whole can only be certified subject to the reservation to be included in the deed, that a repeated certification regarding the real properties outside the canton be carried out by the notaries public competent in those cantons.

The notarizations are generally to be carried out in the office of the notary public (Art. 241 intro. prov. to the CC³).

1 If the authentications are performed for special reasons

outside the office premises, these must be mentioned in the deed.

2 A special justification must be provided in the deed or in a

memorandum to be placed in the ancillary files (§ 53), if

the notary goes to another notarial district for the authentication

(§ 4 para. 2).

2

Notary Ordinance

242.2

3. Outside the Canton's Territory

The notary may not carry out authentications outside the canton, not even for real estate transactions for which he is exclusively competent locally (§ 5). In such cases, he shall induce parties who cannot appear at the office to authorize a representative.

B. Authentication of Declarations of Intent

1. Participants

In the instruments, the persons involved shall be designated by name, first name, year of birth, place of origin, profession, and address, and if necessary, with further details (surnames, father’s name, etc.).

**2. Designation of Companies in Instruments**

Companies shall be designated precisely by the name entered in the Commercial Register.

1. Identity Verification

The notary verifies the identity of the persons involved in the legal transaction (§ 239 para. 1 EG to ZGB3).

For persons not personally known to him, the notary requires the presentation of official identification documents. In doing so, he is not obliged to accept receipts for documents (Schriftenempfangsscheine), driver's licenses, and similar documents as sufficient. The use of service record books (Dienstbüchlein) as identification is prohibited.

In cases of doubt, the notary shall make the necessary reservation on the document, precisely stating the legitimation that has taken place (§ 239 para. 2 EG to ZGB3).

1 The notary ensures that the persons involved are capable of judgment (Art. 239 para. 1 EG to ZGB3).

2 If the binding submission of a declaration of intent requires legal capacity or if other prerequisites must be met (e.g., testamentary capacity according to Art. 467 ZGB10), then the existence of these requirements must also be examined, and Art. 13 para. 2 and 3 applied by analogy where appropriate.

3. Examination of legal capacity

1. Conclusion of a Transaction Requiring Authentication 4. Representation

**by an Agent or for a Legal Person or a and Authorization**

When a transaction requiring authentication is concluded by an agent, or on behalf of a legal person or a partnership, the agent must also be precisely identified in the deed, in addition to the represented party. Proof of the agent's authority must be required, and the manner in which it was provided must be mentioned in the deed. A similar procedure applies when a person acts based on a statutory power of disposal over third-party assets (e.g., Art. 407 CC10).18

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3

**242.2 Notarial Ordinance**

2 If a special authorization is required by law for the conclusion of the transaction, this must also be submitted in writing.

3 These proofs, unless issued by official bodies, shall be certified. They shall be kept with the supporting documents.18

1. Of the organs of commercial companies and cooperatives registered in the Commercial Register, generally no evidence of internal decision-making (extract from minutes of the board of directors or general meeting, etc.) shall be required, even for real estate transactions.

2. For authentications concerning the sale and encumbrance of real estate, in all cases (even for real estate companies), proof of special authorization according to

At the parties' request, the notarization shall be performed despite the lack of identification; however, the lack thereof must be noted in the document.

1 The notary public endeavors with all due diligence to ascertain the true and unambiguous will of the persons appearing before them, in order to prevent any errors and misunderstandings.

2 They inform the parties about the scope and implications of their decisions, draw their attention to contradictions between their declarations and legal provisions, and provide them with the necessary and desired further information.

3 In doing so, they refrain from any intrusive influence on the formation of will, particularly concerning the economic aspects of the transaction.

1 The notary then ensures that the intentions

are clearly and fully expressed in the declaration (§ 239

para. 3 EG to the ZGB3), and he arranges and oversees the drafting

and fair copy of the deed.

2 If the parties have submitted a deed drafted by themselves

(§ 239 para. 3 EG to the ZGB3), the notary, applying

§ 18, provides for the necessary clarifications and additions.

3 The deed is to be titled "Public Deed"

4

Notary Ordinance

242.2

1 The notary refuses to notarize if they become convinced that a party lacks capacity to act (Art. 239 para. 2 of the Introductory Act to the Civil Code³).

2 In cases of doubt, they proceed with the notarization; however, they record their concerns as a reservation on the deed (Art. 239 para. 2 of the Introductory Act to the Civil Code³).

3 The notary proceeds similarly if they fear that the transaction might be void or voidable for another reason, particularly because a party does not appear to be entirely free in forming their will (Arts. 21, 23, 28, and 29 CO¹²), the transaction has an impossible or unlawful content or violates public morals (Art. 20 CO¹²), or if there are doubts as to whether a power of attorney is valid or was obtained by honest means.

III. Refusal

and Notarization

with Reservations

The notary makes the parties aware of the criminal consequences of the IV. Notes

Obtaining a false certification (Art. 253 StGB14) if he gets the impression that the declarations of intent made by them do not correspond to their true will.

1. Note on Criminal Consequences

25. If a legal transaction requires submission to an authority for approval or registration to become binding or fully effective, for example, the Child and Adult Protection Authority (Art. 416 para. 1 no. 5, Art. 327c para. 2 CC10) or the Commercial Register Office (e.g., Art. 52 para. 1 CC10), the notary informs the parties thereof and records this by means of a note in the deed.

2. Further Notes

V. **Recording a declaration of intent in outline form**

If a party intends to record a declaration of intent only in its main points, reserving the right to supplement their statement by inserting numbers, dates, or other information, then the document must clearly indicate which details have not been recorded.

VI. Amendment and Supplementation

A subsequent alteration or amendment of a public instrument may not be effected through mere marginal notes. Rather, an addendum must be notarized or a supplementary new instrument must be drawn up, to which reference is made in the original instrument through marginal notes.

The final text of the deed will, according to their preference, be read aloud to the parties by the official or presented for self-reading in the presence of the official (§ 240 para. 1 EG zum ZGB³).

VII. Act of Authentication

1. Acknowledgment

by the Parties

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242.2

Notarial Ordinance

2. Declaration of Intent

3. Signature by the

Parties

4. Substitution of

Signature

VIII. Attestation

Clause

1. Content

2. Dating

and Signature

IX. Presence of

Participants

X. Foreign

Languages

The notary requests the parties, after they have taken note of the

document, for an express declaration as to whether the document

in all parts corresponds to their will and is correctly drafted

(§ 240 para. 1 EG zum ZGB3).

1 After the declaration pursuant to § 26 has been made, the parties shall sign the deed.

**2 Deeds consisting of several loose sheets must bear the full signatures (names) on the last sheet (at the end of the deed) and either the full names or sufficiently identifying abbreviated signatures of the involved parties on the other sheets. If several persons are involved on the side of one party, they may, at the end of the deed, authorize one of them to sign the other sheets for all of them alone.**

1. Illiterate persons must affix a hand-sign on the deed instead of a signature, which must be specially certified as such by the notary (Art. 15 OR12).

2. If a party cannot sign for other reasons, the notary shall mention this circumstance in the deed, stating the reason.

1 Public certification takes place in such a way that the notary declares on the document that it contains the party's intent communicated to him, has been taken note of by the parties, acknowledged by them as correct, and signed (§ 240 para. 1 EG zum ZGB3).

2 It must be stated whether the document has been read aloud to the parties or read by them themselves.

1. After dating the instrument with specification of the place,

year, month, day, and hour of the notarization, it is signed by the

notary public, stating their official capacity (notary, substitute notary,

notary public) and the notarial district (§ 240 para. 2

EG to the ZGB³).

2. If the notarization is performed by the substituting office, this must be noted upon signing.

During the notarial act according to §§ 25–28, all participants must be present, and the procedure must be completed without significant interruption (§ 241 EG zum ZGB3).

1. **Must the document be drawn up in a foreign language?**

Or if a participant does not understand the German language, the notary

shall engage an interpreter if he is not proficient in the foreign language

or if a party requests it (§ 242 para. 1 EG to the ZGB³).

6

Notary Ordinance

242.2

2. **If an interpreter has participated,** he shall attest in writing on the document

that the translation was diligently performed (§ 242 para. 2 EG to the ZGB³),

and the document must be recorded in the register of deeds (§§ 51 and 52)

both in German and in the foreign language.

18 Reservations

XI. Reservation

specific

a. the special forms of attestation prescribed by federal law for certain attestations (Arts. 184, 499–503 and 512 para. 2 of the Swiss Civil Code (ZGB)10, attestation forms

### 2. Deviating Certification Requirements

If the parties, for considerable reasons (e.g., to comply with special requirements abroad), request a certification that deviates from the statutory jurisdictional and formal requirements, this can only be granted if such a document does not create a false appearance of legality and cannot give rise to misuse, and the parties expressly release the state from any liability.

### C. The Establishment of Other Public Documents

The documentary evidence of any process or 1. Accuracy

a factual or legal relationship should be based on the notary's conviction of the content

that it corresponds to the full truth.

1. Duty of

Truthfulness

1. The documents upon which the certificate is based must be precisely identified in the document.

a. General

2. If the certificate is based on a visual inspection (ocular inspection) or other personal observations of the notary, the place and time of such ascertainment must be stated.

Here is the English translation

1 If they are, for their part, documents from which the notary derives his findings,

then it must be specified by whom and when they were issued and to whom

they were addressed, how they are signed and authenticated, and whether they

are originals or copies.

2 The notary may make notarizations of significant import dependent on

the written supporting documents being provided to him for the files (§ 53),

unless they are held by other official bodies or can otherwise be easily

re-obtained.

1.7. 16-93

7

**b. Documents**

as supporting documents

**c. Reservations**

**II. Designation**

**III. Documents concerning legal relationships**

**1. Regarding specific legal relations**

**2. Regarding the content of legal provisions**

**IV. Documents concerning factual circumstances and processes**

**1. Permissible content**

**2. Requests to be rejected**

242.2

Notarization Ordinance

If doubts exist regarding the authenticity of the documents,

the necessary reservations must be included in the notarial deed (§§ 17, 20).

1 The document shall be provided with the heading "Public Document" and shall be identified as an act of the competent public notary in an introductory or concluding formula.

2 Sections 32-34 are applicable.

1 Certificates regarding the existence or non-existence of legal relationships that cannot be extracted from the protocols, registers, and files of the office itself should only be issued by the notary if authentic documents (excerpts from the Commercial Register, Civil Status Register, etc.) are presented to him.18

2 It should be noted that the evidentiary value of such excerpts depends on the legal effects of the respective register and, as is the case, for example, with the Commercial Register, certain legal relationships, despite requiring registration, may also exist even if they are not registered, or may not exist even if they are registered.

1. Certificates Intended for Use Abroad

concerning the content of provisions of domestic legislation are to be drafted,

regardless of the requirements in the relevant other state, as if they were

to be used in Switzerland.

2. The parties involved are to be informed that any documents requiring

special formalities in the other state (e.g., certificats de coutume in France)

can be obtained from the competent Swiss diplomatic or consular

representation in the other state, based on the certificates issued here.

Requests for the issuance of certificates concerning actual circumstances or events shall only be granted by the notary if they relate to undisputed matters (e.g., the existence of a person, the presence of facilities on a property, the conduct of lotteries, competitions, etc.).

1. Applicants seeking expert examinations that are by their nature intended to secure evidence for a pending or impending legal dispute (e.g., concerning the condition of leased premises, the quality of goods delivered, defects in a work, or impacts on a property) are to be directed to the competent authorities (i.e., pursuant to §§ 143 and 142 GOG² to the municipal executive or the single judge).²³

8

Notary Ordinance 242.2

2. The notary shall refuse requests that are not of a serious or worthy nature, or are otherwise not appropriate to the significance of the notarial deed, as well as assignments that he would have to carry out by concealing his official position, such as test purchases, sample collections, and similar acts.

D. Form of Deeds

1 The documents shall be written clearly and without abbreviations,

gaps or erasures. If it is necessary to strike out words, this must be

done in such a way that they remain legible.

2 Alterations or additions shall be made solely in the margin or at

the end and always confirmed by the signatures of the parties and

the notary.

I. Inscriptions

1. Clarity

2. Writing Instruments

For handwritten records and for the signing of documents, only writing instruments that ensure the durability of the writing may be used by the parties involved and by the certifying officials. Preference is to be given to the use of ink. Pencils may not be used.

1. **Facsimile Stamps and Printed Signatures**

Signatures made with facsimile stamps or by typographic print are not permitted on official documents issued by the office, nor on documents to be issued by the office, whether by the parties or by witnesses.

2. Notaries are permitted to use such reproductions of handwritten signatures for general correspondence (e.g., requests for the submission of mortgage deeds and documents), for notifications of property transfers for administrative or statistical purposes, for summonses, for notifications concerning the public display of official registers, inventories, etc.

1 Every document to be issued by the Office shall be affixed with the official seal of the Office.

2 If it consists of several sheets, these shall be connected either with the official cover sheet or by a sealing band, the two ends of which are to be fastened under the official seal.18

3 Copies intended for the register of deeds are not to be sealed.23

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242.2

Notarial Ordinance

III. Appendices

to Documents

IV. Documents

for Foreign Countries

V. Certified

Copies

I. Register of Deeds A

II. Register of Deeds B

Attachments, which form part of a public deed, must be precisely designated therein, signed by the parties, and, if possible, physically bound to the deed with a seal ribbon and impressed with the official seal, or otherwise designed in such a way that substitution or alteration is not possible.

1 Parties who have documents intended for abroad (in particular,

attestations) drawn up must be made aware that the foreign authority

may possibly require that the signature of the notary (deputy notary,

attesting officer) and their authority to issue the document or to

grant the attestation also be officially confirmed.

2 The parties must be informed that the confirmation can be

obtained from the State Chancellery of the Canton of Zurich (§ 246

para. 3 EG zum ZGB³) and that it may under certain circumstances

be necessary or advisable to subsequently submit the document to the

competent consular representation.

3 The notary must submit their signature specimen and those of

their deputy notaries and attesting officers to the State Chancellery.

From documents whose original remains with the office (§§ 51,

52), any party may request a fee-free copy.

E. Books, Registers, and Vouchers

1 Public instruments concerning legal transactions to be executed in the land register are to be filed in Register A of Instruments and, in accordance with § 18 of the cantonal Land Register Ordinance8, form part of the land register files.

2 Certifications that are not immediately submitted for entry in the land register are to be recorded in a register, which can be created jointly for several registers of instruments (§ 58).

1 The remaining public documents are kept in folders, numbered in chronological order.

2 They are kept securely.

3 For original documents that do not remain permanently with the office (§§ 135–138, 164 d), a photocopy certified by the notary in standard A4 format or a verbatim transcript is placed in the record book.

4 An alphabetical register of the parties is continuously maintained for Record Book B. The nature of the transaction must be briefly indicated.

Notary Ordinance

242.2

23 The essential documents connected with the attestations (e.g. powers of attorney, certificates of capacity to act, commercial register excerpts, documents pursuant to § 37) shall be designated as subsidiary files, be assigned the same numbers as the main files, and be kept in folders.

1 Regarding all IV. Administrative-notarial business not to be executed in a single act, especially concerning the conduct of official and public inventories, estate administrations, representation of heirs, etc., minutes shall be kept. These minutes shall continuously document all essential official acts and processes influencing the procedure, from the granting of the order to the conclusion, with reference to the files.

**2 The minutes shall be signed by the notary at the end. They shall be bound and preserved together with the other public documents from such administrative business (public inventory, official inventory, auction protocol, liquidation account, etc.).**

2. Files

For every notarial administrative matter (inventory recordings, estate administrations, representation of heirs, etc., in accordance with §§ 110, 139–148), a separate collection of files shall be created. In these files, the documents shall be organised by subject matter (e.g., protocol, inventory, list of liabilities, etc.) and, within each subject matter, numbered in alphabetical or chronological order and kept together in folders.

3. Preliminary Records

Records underlying the clean transcripts of the minutes, which had to be created in preliminary form (e.g., in pencil) during the performance of official duties (e.g., inventory taking), shall be attached to the files.

All documents received by the Office will be immediately marked with the date of receipt. If a deadline is prescribed for submission and there is doubt as to whether it has been met, the envelope with the submission shall be placed on file.

1.16

The Notary Office maintains the following registers and directories

2. the Register of Wills (§ 119),

3. the Testator Index (§ 120),

4.25 the Business Register for Inheritance Matters and other Administrative Affairs (§§ 110, 142),

5. the Deposit Register (§ 72),

6. the Certification Register (§ 174) with the Signature Book (§ 176),

VI. Directories

and

Registers

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242.2

Notary Ordinance

7. the Bill of Exchange Register (§ 165),

8. the Collection of Bill of Exchange Protest Copies (§ 165),

9. the Register of Certified Land Registry Transactions Not Yet Registered (§ 51 para. 2),

10. the File Dispatch Control Book (§ 67),

11. the Archive Book (§ 68).

VII. Creation and

Maintenance of

Protocols and

Registers

1. Forms

2. Books

and Binders

3. Card

Indexes

4. Entries

5. Numbering

VIII. Release

of Files

1. To Private Individuals

a. General

b. To Photo-

copying Services

and Bookbinders

For all types of directories and registers, the official forms must be used.

The file covers and ring binders are provided with spine labels that show the designation of the book or binder, the file numbers, and the years.

For the establishment and maintenance of map registers, Article 5 of the cantonal Land Register Ordinance is decisive.

1 When making entries in registers and indices and keeping minutes, Articles 44–46 must be applied mutatis mutandis.

2 In books and indices, entries may only be made with document-proof writing material.

18 The entry of transactions in the registers and the

arrangement of documents in the deed books is carried out under consecutive

sequential numbers. Their numbering begins anew with each calendar year,

with the exception of the deposit register (§ 72), the will control (§ 119),

the outgoing file control, and the archive book (§§ 67 and 68).

With the exception of documents intended to be issued to the parties as per their purpose (exchanged documents) and documents merely deposited (§§ 52 para. 3, 112 et seq., 135–138), or supporting documents submitted to the office only for temporary use, no files of the office may be released to private individuals.

If documents or books must be removed from the office for the purpose of creating photocopies, they shall be delivered to the copying establishment by a reliable messenger and immediately returned. Binding work shall be entrusted to reliable bookbinders, preferably those not interested in the content of the books, who must undertake in writing to maintain confidentiality.

12

Ordinance on Notaries Public

242.2

2. **To Official Bodies**

Registers of deeds may only be released to official bodies, courts, and criminal investigation authorities if it is absolutely essential for the purpose of examining the original deed (especially the signatures) and the creation of certified photocopies or verbatim transcripts or the conducting of an inspection is insufficient.

1 The surrender of files may only take place against receipt.

2 A control book must be kept for outgoing and incoming files (§ 58 No. 10).

3. Control

18 The surrender of archived books and files is governed by the provisions of the Notarial Archive Ordinance7.

4. Surrender of Archival Material

F. Custody and Management of Money and Valuables

I. Prerequisites for the Receipt of Deposits

The notary may only receive deposits of any kind (cash, securities, and other valuables, files, etc.) if the transfer to the office has been ordered by a court decree or if it is related to the performance of a notarial or land registry transaction.

§§ 70 and 71.28

1. Valuables must be immediately entered into the 3. Other

deposit register (§ 58) upon receipt and accurately Deposits

specified, indicating whether the deposits yield returns (interest,

dividends).

2. Valuables of considerable value and size must be entrusted to the

depositary institution (Zürcher Kantonalbank) for safekeeping in an open

custody account. Securities already held by other banks should

remain there, unless security reasons or expediency necessitate their

transfer to the depositary institution.

3. For securities held in open custody accounts with banks, a summary

entry in the deposit register is sufficient, referencing the bank's

custody account statement (which must bear the number from the

deposit register) and other supporting documents for proof of the

current custody account balance.

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242.2 Notary Ordinance

III. Liquidations

The Office also handles, at the request of the creditor or debtor or the parties to a real estate purchase, the disbursement of mortgage loans, the redemption of debts secured by real estate, and other money transfers related to notarial or land registry transactions.

G. Provisions on Recusal

I. Interpretation of Provisions on Recusal due to Kinship

1. Kinship and Affinity

a. Ascending and Descending Line

Among the relatives by blood and by marriage enumerated in § 20 para. 1 NotG5, 18, in whose matters the notary or notary's deputy and other certifying officers are prohibited from performing official acts, are the following relatives by blood and by marriage in the ascending and descending lines

a. the relatives by blood in the ascending line, i.e., his parents, grandparents, great-grandparents,

b. the relatives by marriage in this line, i.e., his stepparents, stepgrandparents and stepgreat-grandparents, as well as the parents, grandparents, great-grandparents of his spouse,

c. the relatives by blood in the descending line, i.e., his children, grandchildren, great-grandchildren,

d. the relatives by marriage in this line, i.e., his stepchildren, stepgrandchildren and stepgreat-grandchildren, as well as the spouses of his children and grandchildren.

The degree of kinship in the collateral line "up to and including the third degree" refers to the overall closeness of kinship and thus includes

a. as relatives of the official: his siblings, uncles, aunts, nephews, nieces,

b. the in-laws of this line, i.e., the spouses of the relatives mentioned under lit. a above, furthermore the siblings, uncles, aunts, nephews, and nieces of the official's spouse.

b. The Collateral Line

c. Delimitation

1. The term "relatives" of the official and his spouse shall always be understood to include half-blood relatives.

2. So-called step-relatives do not constitute a ground for recusal, unless mentioned in Sections 74 and 75.

3. The ground for recusal based on affinity continues even after the dissolution of the marriage that established it.

d. Persons in a registered partnership

19 The provisions on the interpretation of the kinship-related recusal provisions (Sections 74–76) apply mutatis mutandis to persons in a registered partnership.

14

Notary Ordinance

242.2

¹ The notary shall refrain from personally handling a II. Further

notarial transaction between two or more parties if grounds for recusal

he stands in a relationship to one of them that would cause him to appear biased.

2 This applies in particular in matters concerning a legal entity of which

he is a member, or a party with whom he has a relationship of particularly

close friendship or severe enmity.

3 In these cases, the substitute office must be called upon.18

1. Personal

Circumstances

In the same way as under § 78, proceedings must be followed when, for 2. In view

a party whose private consultation and safeguarding of interests the notary has undertaken on a private

basis (especially in the case of executorships, private inheritance business,

private representation of heirs, private partitions of estates), a notarial

transaction with a third party is to be managed.

H. International Traffic

I. Deliveries

1. The transmission of notarial deeds and deposited holographic wills (§§ 122, 125) to authorities and private individuals abroad, and the delivery of official documents connected with deadlines or otherwise with legal effects, shall be carried out in accordance with the agreements in force with the respective state.

2. If direct communication between courts of first instance has been agreed upon with the respective state, the notary shall hand over the document for delivery to the District Court with the request for direct forwarding to the competent court in the other state.

3. If direct communication between higher courts only has been agreed upon with a state, or if forwarding is only possible through diplomatic channels, deliveries shall be sent to the Higher Court (Bureau for Letters Rogatory).

II. Correspondence

Ordinary correspondence arising from the ongoing conduct of official business, such as requests for information and documents, may be delivered directly to the addressee as a postal item.

III. Information

Requests from authorities abroad and from foreign diplomatic and consular representations in Switzerland concerning circumstances arising from the books and files of the office may only be answered with the permission of the Superior Court.

Official Posts

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15

242.2

J. Keeping of Statistics

Notary Ordinance

I. Legal Statistics

II. General Statistics

I. Procedure

II. Protocol

III. Signing of Deeds after the Handover of Office

The notary submits reports annually to the High Court as a basis for the legal statistics appearing in the accountability report, in accordance with the High Court's Regulations on the Statistics of Justice, using prescribed forms.

To the attention of the Statistical Office of the City of Zurich (concerning

real estate transactions within the City of Zurich area) and the

Statistical Office of the Canton of Zurich (for the rest of the cantonal territory),

the notaries, based on the land register documents, compile statistical reports

on changes of ownership.

K. Transfers of Office

27 1 Upon a change in responsibility for official duties, the handover of office shall be carried out under the direction of the Notary Inspectorate.

**2 This includes:**

**a. the preparation of a monthly balance sheet,**

**b. the verification of cash holdings, current account balances, valuables, pledged titles according to the mortgage bond control, mortgage bond forms, deposited dispositions mortis causa, pending bankruptcy proceedings and legal transactions in inheritance matters,**

**c. further inventory controls ordered by the Notary Inspectorate.**

27 1 The handover of office shall be recorded in minutes.

**2 The minutes shall remain with the notary's office. A copy without appendices shall be received by:**

**a. the outgoing notary,**

**b. the incoming notary,**

**c. the Notary Inspectorate,**

**d. the deputy office, if it participated in the handover.**

Should documents (especially mortgage bonds) still need to be signed with a date from the period of an office holder's tenure after their departure, the signing by the deputy, interim administrator, or successor in office should be done in the following form: "Issued on . . . . . . . ., under the administration of the then office holder, Notary NN . . .".

..

16

Notary Ordinance

Part Two: Individual Notarial Acts

A. Notarial Certifications concerning Persons and Company Law

1. Public Authentication of the Establishment of a Founda-

tion (Art. 81 para. 1, 335 para. 1 and 493 CC10) takes place in the forms

of Section B of the First Part (§§ 12–34).

2. The establishment in the form of a testamentary disposition remains

reserved (Art. 81 para. 1 and Art. 498 et seq. CC10).

1 Essential content of the deed of foundation is the dedication of assets for a specific purpose (Art. 80 SCC10).

2 The notary shall ensure that the nature and extent of these assets are precisely defined and that the purpose of the foundation is clearly described.

3 If the founder wishes to establish provisions that are declared inadmissible by law and jurisprudence or are subject to certain conditions (maintenance foundations, right of revocation, reservation of amendment, etc.), the notary shall inform him of the legal situation. If applicable, § 20 shall be applied.

4 The notary shall also, if necessary, draw the founder's attention to the necessity of registering the foundation in the commercial register (Art. 52 SCC10).

5 The deed of foundation may declare the founder or a foundation body authorized to establish detailed provisions in a regulation concerning the structure of the foundation's organization as well as the rights and duties of the beneficiaries. However, the essential principles and any rights of influence of the founder, such as the authority to elect foundation bodies, must be provided for in the deed of foundation itself.

1 For real estate dedicated to the foundation,

the public deed concerning the establishment of the foundation simultaneously constitutes

the public deed within the meaning of Art. 657 CC10 and § 237

para. 2 EG to the CC³ and §§ 12–34 and 154–158 of this Ordinance

with regard to real estate located in the Canton of Zurich, provided that

at least one of them is located within the district of the authenticating notary

(§ 6).

1.7.16-93

242.2

I. Foundations

1. Form of

Authentication

2. Content

3. Real Estate

as Foundation

Assets

17

242.2

Notary Ordinance

II. Establishment

of Companies

1. Form

of Deed

2. Examination

of Documents

4. Contribution in Kind

in the form of

Real Estate

III. Corporate

Resolutions

1. Form

of Deed

2 If none of the real estate to be dedicated is located within the district or

if real estate is located in other cantons (§ 7), the authentication of the foundation

must be carried out including all real estate. However, the parties must

be made aware of the necessity of authenticating the real estate assignments

by the locally competent authenticating persons.

18 1 The public notarization of the formation of a stock corporation,

a partnership limited by shares and a limited liability company shall be

effected in the forms set out in Section B of the first part (§§ 12–34).

2 If further appendices beyond those mentioned in Art. 631 para. 2

CO12 are attached to the original of the deed intended for the Commercial

Register Office, this original shall be specifically designated as such.

18 1 With regard to the certification by the notary that the documents

were presented to the founders (Art. 631 CO12), the notary is not required

to attest to the existence of the legal relationships depicted in the documents.

2 However, the notary must verify whether the documents are at least formally

in order in terms of their outward appearance, whether they contain the

information required by law, and whether their content corresponds to the

findings of the founders that the notary is to certify. If one or the other is not

the case, the notary must nevertheless proceed with the certification, if requested,

but must expressly state the deficiency found by them in the deed.

16

If the notarizing civil law notary is not simultaneously locally competent for the real estate to be contributed as contributions in kind (§§ 5–7), they shall only undertake the notarization of the formation after the contracts for contributions in kind, publicly notarized by the competent authenticating person in accordance with Art. 657 CC10, have been submitted.

18. For subsequent changes following the foundation of stock corporations, limited partnerships with share capital, and limited liability companies (amendments to the articles of association in accordance with Articles 647 and 784 OR12, capital increase and implementation thereof in accordance with

17 1 When drawing up a public deed regarding the resolutions of the general meeting or the board of directors of a stock corporation (Aktiengesellschaft) or the shareholders' meeting of a limited liability company (Gesellschaft mit beschränkter Haftung), the deed-executing official must verify the legal existence of the company and ascertain whether the request for drawing up a public deed is made by an authorized person.

2 However, the deed-executing official is not obliged to verify the legal capacity of the persons participating in the meeting, the signing authority for legal entities, and the authenticity of the signatures.

18. Declaratory instruments concerning transactions within commercial IV. Corporate

companies and cooperatives, such as capital reduction (Arts. 734 and 788 CO12) or the reduction or cancellation of share certificates of the cooperative (Art. 874 CO12), shall be drawn up in the forms of §§ 35–50.

law

declarations

B. Notarial acts under family law

18 For the notarization of marriage contracts (Art. 182–184 Civil Code10) I. Marriage Contracts

the provisions of Section B of the first Part (§§ 12–34) 1. Form

apply, with the following additions.

1 For matrimonial property regimes, the legal designations 2. Content

are to be used, and if the concept of a matrimonial property regime

is to be circumscribed, the terms used by the legislator

should be employed where possible. . . .16

2 If the parties wish to include provisions in the marriage contract

that do not exclusively regulate matrimonial property matters, but rather

have an inheritance law character, then it should be suggested to them

to conclude a marriage and inheritance contract in the forms of Art. 512 CC10,

and if they refuse, a corresponding note

should be added to the marriage contract deed (§ 20 para. 3).

3... 16

18 1 The parties must appear in person for notarization; they cannot be represented by authorized agents (Art. 184 ZGB10).

2 If a contracting party has a legal representative (Arts. 304, 407, 421 No. 9 ZGB10), this representative must participate alongside the party in the notarization and also sign the document (Arts. 183 and 184 ZGB10).

3. Exclusion of Representation

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19

242.2

Notary Ordinance

4. Notes

II. Inventory of Spouses' Assets

III. Choice of Law

V. Family Foundation and Community of Property

VI. Public Inventory under Adult Protection Law

18 Spouses who married before January 1, 1988, must be informed of the transitional provisions (Art. 9 et seq. Final Title ZGB10). The outcome of the clarifications regarding the legal relationships applicable to the spouses must be recorded in the marriage contract.

1 The establishment of the public deed concerning the assets of the spouses in accordance with Art. 195a CC10 takes place in the forms of §§ 12–32, even if the notary is not merely to record the declarations of the spouses but has to draw up the inventory himself.18

2 In the interest of the probative value of the inventory, the notary shall ensure that the inventoried items, especially household effects, are listed not only with generic terms (laundry, kitchen furnishings, furniture, etc.) but as precisely as possible by number, type, or value of the items.

§§ 103 and 104.16

25 If spouses, with a view to relocating their domicile abroad, choose a matrimonial property regime within the meaning of Art. 52 PILA13 in the form of a marriage contract, then an express agreement must be included in the contract (Art. 53 para. 1 PILA13).

§§ 106-108.

The notarization of the establishment of a family foundation

(Art. 335 CC10) and of the contract for the formation of a co-

operative (Art. 336 and 337 CC10) shall be carried out in the forms of

§§ 12-34 and 89–91.

25 1 The taking of the public inventory under adult protection law, to be carried out by the notary on the order of the Adult Protection Authority (§17 para. 4 EG KESR4), in accordance with Art. 405 para. 3 CC10, follows the provisions for the public inventory under inheritance law (§ 145 of this Ordinance, Art. 580 et seq. CC10, § 130 EG zum ZGB3).

2 26

3 The transaction must be entered in the business register (§ 58), and minutes and files must be created in accordance with §§ 54–56.

4 The inventory and final report must be submitted to the Adult Protection Authority.

20

Notary Ordinance

C. Notarial Transactions under Inheritance Law

242.2

The notary provides advice in inheritance matters and assists with I. Consultation

the drafting of testamentary dispositions.

and Drafting

of Testamentary

Dispositions

The notary accepts for safekeeping (§ 1 para. 1 II. Safekeeping of last wills and testaments and inheritance contracts lit. a No. 3 NotG5):18

1. Acceptance

a. Types of Dispositions

1.18 public last wills and testaments (Art. 504 para. 2 CC10),

2.18 holographic last wills and testaments (Art. 504 para. 2 CC10),

3.23 protocols of oral dispositions recorded by the competent court authority in accordance with Art. 506–507 CC10,

4. inheritance contracts which, according to the will of the parties (§ 132), are to be submitted to the competent authority for opening.

1 The holographic disposition can be delivered to the notary either openly or B. Examination

closed.

upon receipt

2 If it is sent or personally delivered unsealed, the notary should satisfy himself

that the formal requirements of

20 1 If the testator agrees, the notary shall notify the residents' registration office of the municipality at the testator's domicile in the Canton of Zurich about the safekeeping, and the residents' registration office shall, based on this notification, ensure in its registration system that the notary is informed of the deregistration due to the testator's relocation from the municipality or of the testator's demise.

2 If the testator revokes their disposition *mortis causa* or their consent to the notifications according to para. 1, the notary shall inform the residents' registration office thereof.

3 If the testator does not consent to the notifications according to para. 1, or if they withdraw their consent, they must state in writing to whom inquiries regarding testamentary revisions (§§ 127-129) are to be addressed.

The notary immediately places the disposition in a special second envelope, which he labels with the serial number from the register and the designation of the testator.

1 Regarding the deposit of a holographic will and the execution of a public will, the notary issues an unsolicited certificate to the testator.

About the establishment and deposit

a. Content

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21

242.2

Notary Ordinance

b. Reservation

c. Waiver

of certificate

4. Entry

and

Custody

a. Will

control

b. Testator

index

2 This certificate shall contain, in addition to the number and data of the will control (§ 119), the instruction to the testator

a. to keep the certificate in such a way that it can be easily found by the survivors after their death and that the notary can be prompted to deliver it to the competent authority,

b. to notify the notary of changes of residence, in order to avoid that, due to uncertainty about the testator's whereabouts or death, their will cannot be brought for opening (§ 125) and remains unheeded,

c. to withdraw the will as soon as it has become meaningless.

If a sealed envelope is submitted with the statement that it contains a specific will, only this fact is to be certified in the certificate, and it is to be noted in the certificate and on the envelope that the existence of the stated content could not be verified.

If the testator expressly requests that no certificate be issued, the instructions according to § 116 must be given to him orally, and a note of this and of the waiver on the testator's card (§ 120) must be made.

1. Last wills and testaments and inheritance agreements handed over to the notary for safekeeping shall be entered in the will control register (§ 58).

2. This register shall be kept in book form with consecutive serial numbers and shall contain the name of the testator and the dates of the execution or submission, return, or cancellation of the will.

3. All dispositions shall be kept in the notary's strongbox, organized according to the numbers in the will control register.

1 The testaments shall furthermore be entered in an alphabetically

maintained testator index kept in card form (§ 58).

2 On the testator card, in addition to the control number of the testament

control and the data contained therein, the type of the last will

disposition shall be indicated, and the testator precisely identified,

stating surname and given names, date of birth, place of origin,

profession, residential address, and any other information useful for identification

and later retrieval.

Notarial Ordinance

242.2

3 Furthermore, it shall be indicated by whom and how the disposition was deposited

(whether by the testator personally or by an authorized representative) or

sent by post, and when and to whom it was handed out.

4 If the same testator has deposited several dispositions, the respective

numbers of the testament control shall be listed on his card.

5 The testator cards for dispositions returned, delivered for opening,

or written off as insignificant (§§ 122, 125, and 130) shall be kept separately,

ordered alphabetically.

1 If a testator requests access to his disposition after its deposit, it shall be granted to him without further ado.

2 Third parties invoking §§ 231 and 232 EG zum ZGB3 shall be granted access only with the testator's consent or upon court order.

5. Access

6. Issuance of the Disposition

During the testator's lifetime, the disposition may only be issued to him personally or to a person provided by him with an officially certified special power of attorney.

a. Authorized Recipient

1 The surrender of the disposition is noted in the will control, stating the date, as well as in the testator card, stating the recipient.

2 In addition, a receipt must be obtained for the files or the receipt confirmed in the register or on the testator card.

1. **Doubt Regarding Testamentary Capacity – Refusal of Return**

If the notary doubts the testamentary capacity of a testator who wishes to withdraw their disposition, the notary shall request the testator to present a medical certificate attesting to their testamentary capacity. If the submission of such a certificate is refused, or if it fails to dispel the doubts, the notary shall refuse to release the disposition, advising the testator of the possibility of nullifying, amending, or supplementing the deposited disposition by means of a new disposition, without having to withdraw it (Arts. 509 and 511 ZGB¹⁰).

1.7.16-93

23

242.2

Notary Ordinance

7. Delivery

for Official

Opening

8. Partial Official

Opening

9. Testamentary

Revisions

and Exceptions

2. **Revocation or Annulment of Deposited Disposition**

If the apparently capacitated testator intends to revoke or annul the deposited disposition, the notary shall prompt them to submit a corresponding declaration that complies with the formal requirements for last wills and testaments. The notary shall append this declaration to the testament declared revoked, make a corresponding note on the testament, and retain both dispositions under the old number of the register of testaments.

3. **Creation of File Notes**

The notary shall create file notes regarding such procedures, which they shall append to the testament upon its delivery for opening pursuant to § 125.

1 As soon as the notary becomes aware of the testator's death, he must promptly deliver the testator's last will and testament (or inheritance contract) to the competent official body for official opening (Art. 556–558 ZGB10) by messenger or registered mail, and request an acknowledgement of receipt.

2 If a last will and testament must be sent to a foreign official body for this purpose, the notary shall submit it to the High Court. The High Court shall take the necessary measures to secure the content of the disposition.

3 The same procedure applies if it is unclear which authority (Swiss or foreign) is competent for the opening of a disposition mortis causa.

If a document containing several dispositions (e.g., in inheritance contracts) must be surrendered to the authority for the opening of one of them, then the authority is to be requested to return the document to the notary's office for further safekeeping afterwards. It is then to be re-entered under reference to the old serial number.

20 1 Each year, the notary shall subject the testator card index to a thorough review to ascertain whether the testators are still

a. alive. For this purpose, the notary shall, if necessary, make inquiries with the civil registry office of the place of origin or with other offices, and exceptionally also with private individuals.

2 During these inquiries, the testator’s interest in the confidentiality of the existence of a last will and testament must be carefully preserved, and any instruction from the testator in accordance with § 114 para. 3 must be observed.

3 The annual clarification according to para. 1 shall not apply to those testators who have consented to the notifications according to § 114 para. 1.

21

24

Ordinance on Notaries 242.2

20. The Expenses Incurred by the Notary Public Due to Revisions

Expenses are to be charged to the testator periodically, as a rule, every four years. In the event of the issuance of the testamentary disposition, any outstanding amount is to be collected from the recipient.

10. Wills that have evidently become purposeless or **meaningless** are to be removed from the will registry and the testator index, after obtaining authorization from the Notarial Inspector, with a note indicating this circumstance, and filed with the records of the will registry.

1. Dispositions

Mortis Causa

1 The notary public draws up public instruments concerning III. Public

dispositions mortis causa (testamentary dispositions and inheritance attestations

contracts), strictly observing the special forms prescribed by federal law (Arts. 499 to 503 and 512 CC10).

2 Representation for the disposing persons is not permissible.

3 If a disposing person is illiterate or otherwise unable to sign, then (deviating from § 28) the signature may not be replaced by crosses or other marks; instead, the form of attestation specified in Art. 502 CC10 must be chosen.

2. Inheritance Contracts

In the public authentication of inheritance contracts (contracts, for example, concerning appointments, legacies, disinheritance) according to

1. Participation of Witnesses

1. It should be avoided as far as possible to involve notarial staff as witnesses in the public authentication pursuant to Art. 501–503 ZGB.

2. In cases of doubt regarding the testator's testamentary capacity (§§ 14 and 20), it should be strived for that a physician is called in as an attesting witness.

3. The witness declaration should include, in addition to the information required by law, the confirmation that Art. 503 ZGB has been brought to the attention of the testator and the witnesses and that, according to their declaration, no ground for exclusion exists for the witnesses.

4. Designation

of the Notary

as Executor

242.2

Notary Ordinance

In public wills and inheritance contracts, the notary may not recommend themselves as executor.

5. Storage or

Handover of

Documents

a. Storage

b. Handover

of

Wills

c. Inheritance Contracts

d. Copies

IV. Business of

Estate Administration

and Inheritance Distribution

1. Types of Business

The disposing person must be made aware that they can hand over the original of the public deed to the notary for safekeeping in accordance with §§ 112 et seq. (Art. 504 CC10).

If the disposing person wishes to take the original into their possession, then

they must, along with the acknowledgement of receipt, sign a declaration

stating that they alone will bear the risk of loss and will themselves make provision

for the document to reach the official opening after their death (§ 125).

1. Inheritance agreements may only be released with the consent of all parties, and a declaration from all of them must be obtained in accordance with

For every original document not permanently remaining with the office, a certified copy or photocopy must be filed in Document Book B (Section 52).

23 The notary public, in accordance with § 137 GOG2, handles the following inheritance law matters

1. Drawing up the inventory and securing assets in the case of a substitute heir appointment (Art. 490 ZGB10),

2. Securing the succession (Art. 551 ZGB10), in particular sealing and inventorying, insofar as this is not the responsibility of the guardianship authority (Art. 552 and 553 ZGB10, § 125 EG zum ZGB³), estate administration and heir summons (Art. 554 and 555 ZGB10),

3. Drawing up public inventories (Art. 580, 585 para. 2 and 587 ZGB10), carrying out the call for claims if the estate falls to the public authority (Art. 592 ZGB10),

4. Official liquidation (Art. 595 ZGB10),

5. Representation of communities of heirs (Art. 602 para. 3 ZGB10),

6. Participation in the division of inheritances and participation in lot formation (Art. 609 and 611 ZGB10),

7. Determination of the method of auction and division before the commencement of the inheritance division proceedings (Art. 612 and 613 ZGB10).

2. Jurisdiction

23 1 The Notary Public shall only accept business of the kind listed in § 139

for the purpose of Auftragserteilung (granting of the order/mandate) from the individual court,

not from the client (§ 138 GOG2).

26

Notary Ordinance

242.2

2 The Notary Public shall refer applications from other authorities (subject to § 110) and from private individuals to the individual court.

3 The execution of estate divisions is only permissible within the framework of

1. Legal Assistance in the Execution of Transactions Listed in § 139

Notaries within the canton are mutually obliged to render legal assistance to each other.

2 They must also comply, where possible, with requests for legal assistance from competent authorities in other cantons and should, for matters in other cantons, avail themselves of the legal assistance of the authorities there, insofar as this is feasible and appropriate.

4. Register

The transactions according to §§ 139 and 141 shall be entered in the business register according to § 58, and minutes and files according to §§ 54–56 shall be created.

1 Without special instructions from the commissioning authority, the notary shall not place the estate under seal and custody, nor shall he take cash or securities into custody, in inheritance inventories.

2 In case of unclarity regarding the scope of the assignment, the notary shall request special instructions from the commissioning authority.

6. Inventory in Estate Matters

At the commencement of every estate administration and for representation of heirs where assets are to be managed, an inventory must be drawn up, or an existing inventory must be reviewed and completed.

1. **Public Inventory**

When establishing a public inventory in accordance with Articles 581–584 of the Swiss Civil Code (ZGB)10, a record of the heirs' statements regarding the testator's assets must be drawn up and signed by the heirs.

The heirs must be informed of their responsibility according to Article 581, paragraphs 2 and 3 ZGB10, and of the penal consequences for making untrue statements or for removing assets (§ 1 para. 1 and

The provisions of Section 145 also apply to the official liquidation of the inheritance.

The notary, in all cases where an inventory has been drawn up by official order, shall prepare a copy for the commissioning authority and, in the case of estate inventories, shall provide the inventory authority of the municipality of the deceased's last domicile with an engrossment free of charge for the attention of the tax authorities.

Where the nature of the assignment requires it, the notary shall submit a final report to the single judge (e.g., on the execution of an official liquidation, a lot formation, etc.) and request the judge to declare the matter concluded, if necessary to issue orders concerning the release of moneys and valuables taken into custody, and to formally discharge the notary from the assignment given to him.

§§ 149-151.

I. Public

Authentications

1. General

2. Certifying

Officer

3. Contracts for

Property

Transfers

D. Notarial Transactions in Real Estate Traffic

The public authentications of legal transactions concerning real rights in real estate and personal rights capable of being noted in the land register, necessary in connection with land register management, shall be carried out in the forms of §§ 12–32 with the following deviations.

1 If the notarization is performed by an official or employee of the Notary Public's office authorized for this purpose by the High Court (§ 13 lit. b NotG5), they must sign the document with the formula: "Notary Public's Office X, NN, Certifying Officer."18

2 The certifying officer may, with the authorization of the notary, sign duplicates of documents drawn up by them. Otherwise, they are not authorized to sign copies and certificates.

1. Prior to notarizing a contract aimed at transferring ownership, the notary public shall read out to the parties the content of the land registry, land register, or land book entries concerning the individual properties, and from the auxiliary books and supporting documents, the full text of the annotations, preliminary notices, easements, and land charges, as well as the interest and payment terms of the land charges.

2. This may be omitted if the buyer declares that they are already aware of this information and waives the reading.

3. The manner in which the information was provided must be recorded in the deed.

b. Land Plots

If a legal transaction also relates to land plots in another Zurich district (§ 6), the notarization should only take place if a land register extract with the information mentioned in § 154 is available, or, in the absence thereof, the parties nonetheless request the notarization and release the notary from liability.

c. Description of Properties

With the consent of the parties, the description of the properties in the deed can be limited to the most important details (land register or land protocol or land registry citation, cadastral and insurance numbers, land area), and for the remainder (particularly with regard to boundaries, annotations, and easements), reference can be made to the respective registers.

1 The certifying officer shall provide the parties with detailed information regarding the statutory provisions concerning warranties for legal and material defects and shall endeavor to formulate clauses for the exclusion of subsequent warranty in a clear and unambiguous manner.

2 Where the federal land register has not yet been introduced, the acquirer must be informed of the possibility of unregistered real rights and encumbrances existing (Art. 48 Final Provisions ZGB10).

3 Likewise, the acquirer must be made aware of the existence of any statutory liens.

When rights and obligations from a purchase agreement are transferred to another buyer, it must be ensured that all three parties are involved in the notarization of the transfer transaction, even if the purchase agreement already contains an entry clause.

1 For the notarization of contracts for the establishment of a 4. Pledge Agreements

mortgage, the presence of the owner of the pledge is sufficient. The

creditor's participation in such cases takes place through a written

declaration.

2 If the creation of the pledge is combined with an acknowledgement

of debt, the debtor must also participate.

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29

242.2

Notary Ordinance

II. Transactions

without public

notarization

I. Guarantees

1. Form

2. Guarantees

by spouses

and persons in

registered

partnership

II. Annuity

Contract

III. Usufruct

Inventory

Even in further matters related to land registry management that do not require public authentication, such as the allocation of land in inheritance proceedings according to Art. 634 para. 2 ZGB10, the establishment of owner's pledge certificates (Art. 859 ZGB10), easements according to Art. 732 ZGB10, and legal relationships to be noted, such as rights of pre-emption (Art. 216 para. 3 OR12), the notary assists the parties in putting their declarations into the correct form.

E. Other Authentication Matters

1 When ordering a suretyship (Art. 493 para. 2 OR12),

the power of attorney to enter into a suretyship and the promise

to provide a suretyship (in accordance with Art. 493 para. 6 OR12), the

declaration of intent of the surety is notarized in the forms of §§ 12–32.

2 The notary refuses the notarization of suretyships that do not

contain a numerically fixed maximum amount of the surety’s liability

or otherwise obviously do not comply with legal provisions (Art. 492 et seq., in particular 499 para. 1 OR12).

20 1 The surety must be requested to disclose their marital status. If their statement is not proven by documentary evidence (§§ 36 and 37), it must be clearly stated in the notarization that this is an unverified statement by the surety.

2 If the surety is married or lives in a registered partnership, an attempt should be made to have the spouse or partner participate in the notarization act simultaneously (Art. 494 para. 1 CO12). If the surety presents a written declaration of consent, this process must also be clearly mentioned in the deed, and the impression that the unverified declaration of consent forms part of the notarial notarization must be avoided.

1. In endowment contracts, which must be notarized in the forms of a contract of inheritance (Article 522 CO12 and Article 512 CC10), §§ 12–32 and 131 must be observed.

2. If the endowment contract is related to the assignment of real estate, the entire contract must be notarized in the form required for the endowment.

The Public Instrument on the Usufruct Inventory

pursuant to Art. 763 SCC10 is drawn up in the forms of §§ 12–32 and 102.

30

Notarial Ordinance

242.2

19 1 For the notarization of a property agreement between

persons in a registered partnership (Art. 25 PartG11), the

provisions of Section B of the first part (§§ 12–34) apply.

2 For the property agreement, § 99 para. 2 applies mutatis mutandis.

IV. Property

Agreement in

Registered

Partnership

19 For the inventory of persons in a registered partnership (Art. 20 PartG11), § 102 applies by analogy. V. Inventory in

registered

partnership

22 For the notarization of an enforceable public VI. Enforceable

instrument, the declaration of intent of the obligating party is Public

notarized in the forms of §§ 12–32.

Instrument

VII. Precautionary

24 1 For the authentication of a lasting power of attorney, the declaration of intent of the obligated party shall be authenticated in the forms of §§ 12–32.

2 A certified copy or photocopy of the original instrument shall be filed in Register B (§ 52).

3 In the case of lasting powers of attorney, the notary may not recommend himself as the appointed person.

F. Protests of Exchange

1. The bills of exchange and other protestable instruments received I. Registers

for the purpose of protest are to be immediately entered into the and Records

bill of exchange control ledger (§ 58), specifying the date of receipt.

2. If a bill of exchange is received only shortly before the expiry of

the protest period or belatedly, the hour of receipt must also be

noted, and § 57 applied.

3. Copies of the bills of exchange protest certificates (Arts. 1036–1040 CO)

are to be marked with the number from the bill of exchange control

ledger and kept in file folders.

II. Place, Time, and Manner of Demand for Payment under a Bill of Exchange

1. Manner of Demand

The place, time, and manner of demanding performance under a bill of exchange (Art. 1036 para. 1 no. 1–3 CO12) must be specified in the protest instrument. If special circumstances necessitate making the demand by telephone, these circumstances must likewise be mentioned in the instrument.

If a bill is received late for protestation, the **2. Late Payment Demand** is still to be made, but no protest certificate (subject to Art. 1051 OR12) is to be issued, but rather an ordinary certificate.

1.7.16 - 93

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242.2

Notary Ordinance

Regarding actual changes of domicile and so-called payment agent changes, at the place of payment specified in the bill of exchange, the drawee or his representative must be personally inquired after, and their statement must be received. Furthermore, the domiciliary or the payment agent must be requested to pay, and their statement must also be recorded in the protest instrument.

4. Aval

5. Sight Bill

III. Bill of Exchange Payments

IV. Signing of Protest Instruments

If, according to the bill, a guarantor is obligated for the drawee, the protest is to be recorded only against the drawee, without a special request from the creditor.

In the absence of other instructions regarding changes in sight, the protest must be recorded on the day the bill is received.

1 Partial or full payments on protested bills of exchange are, as long as

the protest certificate has not been dispatched, to be received on behalf of the bill holder

and immediately forwarded.

2 In the case of full payment without default interest and costs, the

protest action is limited to these interests and costs (Art. 1036 para. 2

CO12).

18 If the protest has been recorded by an official or employee of the Notariat specially empowered thereto by the Superior Court (§ 13 lit. a NotG), he shall sign the instrument with the formula: "Notariat X, NN Protest Official".

G. Certifications

I. Certifi-

1 Regarding the certifications of signatures, copies, extracts, and the date of private documents, a control book shall be maintained.

II. Certification of Signatures

1. Procedure

2 The number from this control book must be affixed to every certification.

1 Requirements and Performance of Certifications

are governed by the provisions of §§ 247–250 EG to the ZGB³ and

§§ 45 and 46 of this Ordinance.

2 The certification of pencil signatures is not permitted.

32

Notary Ordinance

242.2

1. Whoever requests the official authentication of a signature or 2. of a hand- mark for control purposes, must enter their signature or hand- mark in the authentication control book or in a special signature book of the notary's office belonging to this control book.

2. If several authentications are requested simultaneously, a single control signature is sufficient.

3. If the identity of the person requesting the authentication is proven by witnesses, these witnesses must also sign in the authentication control book.

1 Where special circumstances justify it, the notary is authorized to exempt a person known to him from appearing in person and to have the recognition of their signature and the signing in the authentication control carried out by an authorized representative (§ 247 para. 2 EG zum ZGB3).

2 The power of attorney must be officially certified and contain a declaration that the issuer and, if applicable, the company as whose organ they act, shall bear all consequences of an abusive use thereof themselves, waive claims for damages against the notary and the state, and undertake to indemnify them against claims from third parties. These powers of attorney must be kept with the files for the authentication control.

3 The notary is entitled at any time to demand a new power of attorney or to refuse further application of this procedure.

3. Recognition

of Signature

by Authorized

Representatives

Signatures of

Representatives

of Commercial

Enterprises

Here is the English translation

242.2 Notary Ordinance

1. When authenticating the signature of a representative of a sole proprietorship, a commercial company, or a legal entity, the signatory is to be named only with their own personal details, and by appropriate restrictions, the impression is to be avoided that with the authentication of the signature, the authority to sign on behalf of the company is also certified. 4. Sub-firms

2. The notary only undertakes this further certification if they are reliably informed about the latest status of the commercial register entry. If other documents are presented for proof of the power of representation, this fact is to be certified with a precise designation of the documents (sections 36–38 and analogously section 162) without drawing conclusions. The documents are to be placed in the authentication control files. 1.7.16-93

5. Authentication Formula

1 The authentication of signatures is generally carried out

according to the following formula

"The authenticity of the above signature, executed in my presence

(... personally acknowledged by the authorised representative NN

acknowledged. . .) of NN, who is personally known to me

(or) of NN, who identified himself by presenting a ... (designation of identity

documents) . . .

(or) of NN, whose identity was confirmed by NN, who is personally known to me...,

is hereby officially certified."

Place, Date and Signature.

2 To avoid misunderstandings, where deemed necessary, this formula should include a statement that the authentication of the authenticity of the signature does not constitute certification of the content of the document or confirmation of the validity of the legal transaction.

If the signature to be authenticated is affixed to a blank sheet of paper, the notary shall mention this in the authentication.

III. Authentication of

Copies

and Extracts

1. When certifying copies and extracts from documents and books, the procedure set forth in §§ 248 and 249 EG zum ZGB3 shall be followed.

2. Photocopies submitted by the parties must also be compared word for word with the original document (due to the possibility of photomontages), just like ordinary copies.

3. To avoid misunderstandings, the certification formula should, where it seems appropriate, be supplemented with a statement that the certification of a copy or an extract says nothing about the meaning or validity of the original document.

4. Special reservations must be made if a copy of a document written in pencil is submitted for certification.

IV. Securing

the Date

The date of a private document is secured

by a certificate to be affixed to the document by the notary,

stating when and by whom the document was presented (§ 250 EG zum

ZGB3).

V. Signature

of the

Attestation

18 If the attestation is signed by an official or employee of the Notary's Office authorized by the Superior Court for this purpose (§ 13 lit. c NotG5), then they must use the formula: "Notary's Office X, NN, Attesting Officer."

34

Notary Ordinance

H. Further General Notarial Business

242.2

When issuing certificates and attestations, I. Certificates

which are not drawn up with the formalities of a public deed according to § 39 and Attestations

the §§ 35 et seq. are to be applied analogously.

1. Subject Matter

and Form

1. Of these certificates and attestations, a copy signed by the official issuing the entry is to be placed in the auxiliary files or in a special folder.

2. Certificates and attestations that are affixed to parties' documents without a copy are to be registered as authentications (§ 169). The entry must note the person requesting the certificate, the content of the certificate with a keyword, the date, and the name of the issuing official.

1 The issuance of certificates of origin for customs II. Certificates of

purposes is (according to Art. 1 of the Ordinance on Certificates of Origin

Origin of the Trade Division of the FDEA of June 2, 197615) the

responsibility of the Chamber of Commerce in Zurich, with the exception of the

Winterthur district, for which the Commercial Society – Chamber of Commerce –

in Winterthur is responsible.

2 If the notary is requested to issue certificates of origin or provenance for

other purposes, he shall (in the sense of §§ 35–38) only attest to what he has

been able to ascertain through his own observation from the books and documents

presented to him and, if necessary, through inspection of the manufacturing plant.

1 Voluntary Public Auctions

The notary only conducts voluntary public auctions if, in the context of an official commission entrusted to him, he is to sell movable and immovable property by virtue of his own right (e.g., as an official estate administrator, in the official liquidation of an estate) or by special order of the single court (e.g., in the representation of heirs) (§ 223 Sentence 2 EG zum ZGB³).

**2** If the parties involved (e.g., the heirs) decide on their own initiative to commission the notary to conduct a public auction, he refers them to the municipal bailiff responsible according to § 223 Sentence 1 EG zum ZGB³.

1.7.16 - 93

35

242.2

Part Three: Final Provisions

Notary Ordinance

1. This Ordinance shall come into force on January 1, 1961.

2. It supersedes the Ordinance of the High Court of October 26, 1932, concerning the Rules of Procedure for Notary Offices and Land Registry Offices, including amendments of December 22, 1951, and the previous circulars regarding the handling of notarial business.

3. The Administrative Commission of the High Court is authorized to issue supplementary directives by circular.

17 The Administrative Commission of the High Court is authorized to issue provisions that deviate from this Ordinance regarding the design and management of registers and controls with the aid of EDP.

1 OS 40, 1247 and GS II, 332.

2 LS 211.1.

3 LS 230.

4 LS 232.3.

5 LS 242.

6 Obsolete.

7 LS 244.

8 LS 252.

9 LS 312.

10 SR 210.

11 SR 211.231.

12 SR 220.

13 SR 291.

14 SR 311.0.

15 SR 946.311.

16 Repealed by Ordinance of the High Court of June 24, 1992 (OS 52, 181).

17 Inserted by Ordinance of the High Court of June 24, 1992 (OS 52, 181).

18 Version according to Ordinance of the High Court of June 24, 1992 (OS 52, 181).

19 Inserted by Resolution of the High Court of December 13, 2006 (OS 61, 605). In force since January 1, 2007.

20 Version according to Resolution of the High Court of December 13, 2006 (OS 61, 605). In force since January 1, 2007.

21 Repealed by Resolution of the High Court of December 13, 2006 (OS 61, 605). In force since January 1, 2007.

36

**Notary Ordinance**

**242.2**

22 Inserted by Resolution of the High Court of November 3, 2010 (OS 65, 856; ABI 2010, 2525). In force since January 1, 2011.

23 Version according to Resolution of the High Court of November 3, 2010 (OS 65, 856; ABI 2010, 2525). In force since January 1, 2011.

24 Inserted by Resolution of the High Court of December 5, 2012 (OS 68, 100; ABI 2012-12-14). In force since April 1, 2013.

25 Version according to Resolution of the High Court of December 5, 2012 (OS 68, 100; ABI 2012-12-14). In force since April 1, 2013.

26 Repealed by Resolution of the High Court of December 5, 2012 (OS 68, 100; ABI 2012-12-14). In force since April 1, 2013.

27 Version according to Resolution of the High Court of March 2, 2016 (OS 71, 183; ABI 2016-03-18). In force since July 1, 2016.

28 Repealed by Resolution of the High Court of March 2, 2016 (OS 71, 183; ABI 2016-03-18). In force since July 1, 2016.

1.7.16 - 93

37

Abs. 2 CO12 to demand.

3 Representatives of associations, foundations, and public-law

corporations must prove their authority to represent by submitting the resolutions of the competent organs.

ZGB10 are met.

The parties are to be prompted to declare whether the inheritance contract should be officially opened at the appropriate time in accordance with Articles 556–558 ZGB10. A note to this effect is to be made at the end of the instrument.

ZGB10 and § 137 GOG2 Official matter.

and 652g para. 2 and 3 CO12),

1. Special

Provisions

b. the statutory deviations and additions stipulated in the 2nd Part of this Ordinance for certain legal transactions (e.g. § 159 regarding the notarization of pledge agreements, § 161 regarding the notarization of suretyship declarations).

forms

652 g and 653 g CO12, resolutions of dissolution in accordance with Art. 736

and 820 CO12), the notarization should express that the

formation of will is based on resolutions of the General Meeting or the Board

of Directors and not on individual declarations of intent of the

parties involved.

18

Ordinance on Notarization

242.2