Notarising contracts: why a request is refused, and what the document is worth afterwards

The request arrives ready: the contract is drafted, the parties are present, the appointment is booked. And then the procedure is refused. The reason is usually not the contract itself, but who is notarising it and who the parties are.

The Notarization Law, issued by Royal Decree No. (M/164) dated 19/11/1441H, divides notarial work among three bodies, excludes situations in which the notary public has no competence, and then gives documents issued under it a force no other paper carries. This article covers those three points: who is competent, what stops the procedure, and what the document is worth once issued.

Three bodies, not one

Article 1 defines notarisation as the set of procedures that secure proof of a right in a manner that can be relied upon. The law then distinguishes the notary public (كاتب العدل), a government official with Sharia qualifications competent to notarise contracts and acknowledgements; the licensed notary (الموثق), who carries out notarial work under a licence; and the marriage officiant (المأذون), who notarises marriage contracts under a licence.

The notary public’s work is listed in article 11, and includes divorce, khul’ and reconciliation of the marriage, settlement agreements, the creation of endowments and wills, agreements on custody, maintenance or visitation, the acknowledgement of a person unable to read, and the transfer of real-estate title deeds and possession deeds that have completed their Sharia and statutory procedures.

The licensed notary’s work is listed in article 15, and includes the transfer of real-estate title deeds as detailed in the regulation, powers of attorney and their revocation, mortgages and their release and amendment, company incorporation contracts and amendment annexes, minutes of general assemblies, dispositions over trade marks, patents and copyright, contracts over movable property, acknowledgements of indemnity guarantees, and acknowledgements of sums of money and movables, their receipt and their waiver.

So the first question on any request is not whether the contract is sound, but which body is competent for this type of transaction. Going to the wrong one buys nothing but a wasted appointment.

What the notary public is not competent for

This is where most refusals come from. Article 12, as amended by Royal Decree No. (M/21) dated 26/1/1447H, provides that the notary public has no competence to notarise any acknowledgement or contract where one party lacks capacity or has limited capacity, or is absent, or is the administrator of an endowment or a will. It then allows exactly five exceptions: acceptance of a gift; a father’s dispositions in the property of his child lacking or limited in capacity; the seller’s acknowledgement of a sale made to the deceased predecessor of a person lacking or limited in capacity where the price was received before that predecessor’s death; property expropriated for public benefit unless the consideration is itself real estate; and a lease whose term does not require permission from the competent court.

The same applies to the partition of jointly owned property. Article 11, in the paragraph amended by Royal Decree No. (M/21), makes the notary public competent for the partition of jointly owned property, including real estate, only where there is no dispute over it, no endowment or bequest share in it, and no party lacking or limited in capacity or absent. If any of those features is present, the partition leaves his hands.

A hypothetical: a property is held jointly by several co-owners who want to divide it by agreement, and one of them has not reached majority. The request cannot be completed before the notary public as an agreed partition, because the presence of a party with limited capacity removes it from his competence. The correct route is the competent court, and insisting on the first door only costs time.

What is checked before the acknowledgement is drawn up

Article 27 obliges the notary public and the licence holder to draw up the parties’ acknowledgements only after verifying their capacity, their standing and their identity, and satisfying themselves as to the documents submitted and that those documents are fit to be relied on. Capacity, standing, identity and documents: four checks that come before drafting, and any one of them can halt the procedure.

Three further constraints apply to every transaction:

• Language: article 36 requires contracts and acknowledgements to be notarised in Arabic. Where a party does not have command of Arabic, an accredited translator must be used and must sign the translation, and under article 28 no translator with an interest in what is being notarised may be used.
• Conflict of interest: article 29 prohibits the notary public and the licence holder from notarising anything touching their own interest or that of their spouse, ascendants, descendants or those under their guardianship, even in a representative capacity.
• Foreign documents: article 37 makes acceptance of documents issued outside the Kingdom conditional on verifying that they do not conflict with Sharia or statutory requirements and on the Ministry’s authentication, and the same applies to the original of their Arabic translation.

These are not administrative details. Breaching them exposes the procedure to liability, which is why the official or the notary stops at them even where the request is sound in substance.

The standard forms — and the right to add conditions

Article 40 requires notarial work to be carried out on forms prepared by the Ministry. Many read that as meaning the form is closed. The text says otherwise. In the paragraph amended by Royal Decree No. (M/21) dated 26/1/1447H, the forms must be prepared with regard to the contracting parties’ right to add any condition or agreement, so long as it does not conflict with statutory provisions.

So anyone who leaves the contract on the bare form while wanting an additional term has given up a right the law grants them. Settling the conditions before the appointment is what gives that paragraph value.

The term of a power of attorney deed

Article 38, as amended by Royal Decree No. (M/21) dated 26/1/1447H, fixes the term of a power of attorney deed at five years from its issue, unless it is revoked, or one of its parties dies or loses capacity before that term expires, or the principal fixes a shorter term.

A power of attorney is not a permanent instrument. Anyone building a long-term arrangement on a power of attorney deed is building on a term that will run out.

What the document is worth once issued

This is worth knowing before notarisation, not after. Article 41 provides that documents issued under the law have the force of proof, are treated as an enforceable instrument as to any obligation they contain, must be given effect before the courts without additional evidence, and may not be challenged.

Three consequences follow:

• The document is an enforceable instrument as to the obligation it contains, so no substantive action is needed to establish that obligation.
• It is annulled only by a judicial ruling, on the basis that it conflicts with Sharia or statutory principles, or that it is forged, and only after proceedings that have completed their Sharia and statutory steps.
• Under article 43, no suspension or precautionary annotation may be entered on the notarial record, or lifted, except by order of the competent court or an authority empowered to do so by a statutory provision.

Article 42 allows anyone with an interest, even a contingent one, to sue the holder of a document issued under the law or whoever benefits from it before the competent court, under the Law of Civil Procedure, the Law of Criminal Procedure and related laws. The document is strong, but it is not beyond challenge. The difference is that the burden of overturning it falls on the challenger, and the route is a judicial ruling after full proceedings.

Practising notarial work without a licence

Article 26 prohibits the practice of notarial work without a licence. Article 52 punishes anyone who assumes the name or standing of a licence holder, or practises their work without a licence, with imprisonment of up to one year, a fine of up to one hundred thousand riyals, or both.

Hence the value of verifying the licence before handing over any document: a paper issued by someone without competence does not acquire the force set out in article 41.

Electronic records and where the procedure takes place

Article 35 permits notarial data to be recorded electronically, with the same status as written instruments under the Electronic Transactions Law. The Ministry of Justice’s services are available through the electronic services portal and the Najiz platform.

As for location, article 31 keeps the notary public’s work inside the notary office and allows him to leave it only under set controls, while the licensed notary may travel if the parties ask. Beyond that, the notarial record or any official document in custody may on no account be taken outside the notary office or the notarial practice.

Recurring reasons a procedure stalls

• A party lacking or limited in capacity, or absent, in a transaction outside the listed exceptions.
• An endowment or bequest share in the property being divided or dealt with.
• An existing dispute over the property, since agreed partition requires the absence of a dispute.
• A foreign document with no Ministry authentication and no accredited translation.
• An attorney holding a deed beyond its statutory term, or one that has ended for one of the grounds of termination.
• A title document whose Sharia and statutory procedures were not completed before the transfer was requested.

In short

Notarisation has a scope. Check the scope of competence, the standing and capacity of the parties and their documents before the appointment, and the matter is done in one session. Leave that review to the session itself, and the whole procedure waits.

The value shows up years later: a document issued under the law is an enforceable instrument that can only be annulled by a judicial ruling. That force is never given to a paper that came from someone without competence.