Code of Practice

Chapter Text

You are personally liable for any undertaking given as a notary whether oral or in writing [Practice Rule 13].

Undertakings are most likely to be given by notary-conveyancers in the course of providing conveyancingservices, but all notaries should be aware of the strict rules governing undertakings and not inadvertently or recklessly give an undertaking that subsequently cannot be honoured.

If an undertaking is not performed this will constitute Notarial Misconduct unless there are exceptional circumstances [Practice Rule 13.1].

Practice Rule 13.2 also requires you to sign any undertaking given or confirmed in writing.  As a matter of good practice undertakings should not be given orally except in genuinely exceptional circumstances and if an undertaking is given orally a prompt written confirmation of that undertaking should be viewed as essential.  You should keep the signed undertaking in your file for the particular matter and make a record of the undertaking given in a separate record.

You should implement a policy to ensure that your record of undertakings is reviewed on a sufficiently regular basis to enable you to keep track of your obligations, and to note the proper discharge of a given undertaking.

Outcomes

• The public has confidence in undertakings given by notaries.
• The proper discharge of undertakings is a professional obligation backed by regulation and enforcement.
• Notaries who give undertakings keep a record showing the undertakings given and their discharge.

Positive Indicators

• You ensure that any undertaking given in writing is signed.
• You only give an oral undertaking if it is reasonably necessary in the circumstances to do so, and as soon as possible after giving an oral undertaking you provide a signed confirmation in writing of that undertaking.
• If you give undertakings as a notary, you keep a separate record of undertakings which you review regularly.

Negative Indicators

• You give a written undertaking that is not signed.
• You give an oral undertaking when a written undertaking would be more appropriate.
• You fail to provide a written signed confirmation of an oral undertaking.
• You give undertakings as a notary but do not keep a separate record of those undertakings.
• Your record of undertakings does not record clearly the nature of the undertakings given and/or their subsequent discharge.