THE LEGAL RESPONSABILITY OF THE NOTARY PUBLICS IN THE LIGHT OF THE COURT OF CASSATION DECISIONS

Notary publics are regulated in the Notaries Act No. 1512 in Turkish law. Defining the notary publics as a public service, notary publics document operations for assuring security and preventing disagreements and execute other duties given by laws. Notary publics, certifying various documents and transactions as well as doing other duties given by laws should be held responsible for the damage occurred during the fulfillment of these tasks. In order to ascertain the nature and scope of this responsibility, the law maker has established a special norm in the Notaries Act (Art.162) aside from the general principles in the law of obligations. The relevant provision regulating the responsibility of the notary publics is applicable to clerks and clerk candidates. In terms of determining the legal liability of notaries, a dual classification has to be made. Because the regulation saying that “the notary publics are responsible against those who suffered damage for undone, erroneous or deficient works; even if they are executed by the interns, clerks and clerk candidates” include two types of separate responsibility. First of all, the notary publics are responsible against those who suffered damage for undone, erroneous or deficient works themselves. Furthermore the notary publics are held responsible for undone, erroneous or deficient works; even if they are executed by the interns, clerks and clerk candidates. The legal connection between the notary public and the person suffering from the erroneous and deficient work is a contractual relationship. In our opinion the liability of the notary public is similar to the liability of the State for the losses arising for the maintenance of the land register (TCC Art. 1007). For the this reason a similar interpretation should be made. The article regulating the legal responsibility of the notary public does not include the concept of culpa as a condition of responsibility but has brought the concept of “cause” for the recourse possibility. The legal responsibility of the notary publics is very strict as it is similar to that of the State and does not include a liberation clause. Since we do not have an obligatory occupational insurance system in Turkey which will decrease the burden of the notary publics, a liberation clause just like the one in the Turkish Code of Obligations should be accepted in favor of the notaries.