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(a) As a rule notarial acts should be performed at the consular office. Where required by the circumstances of a particular case and subject to the reasonableness of the request, notarial acts may be performed elsewhere within the limits of the consulate subject to the assessment of the applicable fees under subheading "Services Rendered Outside of Office" of the Tariff of Fees (§ 22.1(a) of this chapter), as well as to payment by the interested party of the officer's expenses in going to the place where the service is performed and returning to his office (§ 22.1(b) of this chapter).
(b) As indicated in §§ 92.4, 92.5, and 92.6, the authority of secretaries of embassy or legation as well as consular officers to perform notarial acts is generally recognized. However, the function is essentially consular, and notarial powers are in practice exercised by dip1 lomatic officers only in the absence of a consular officer. Performance of notarial acts by an officer assigned in dual diplomatic and consular capacity shall be under his consular commission, except in special circumstances. For ease of reference, the term "consular officer" is used in this part in discussing the notarial function of the Foreign Service. [Dept. Reg. 108.486, 27 F.R. 12616, Dec. 20, 1962]
GENERAL NOTARIAL PROCEDURES § 92.8 Compliance with request for notarial services.
prescribed in this part. (See particularly §§ 92.3 to 92.7.) Moreover, as a representative of the United States Government, the consular officer, when acting in a notarial capacity, should take great care to prevent the use of his official seal in furthering any unlawful or clearly improper purpose. (See § 92.9 regarding refusal to perform notarial services in certain cases.)
§ 92.9 Refusals of requests for notarial services.
(a) A consular officer should refuse requests for notarial services, the performance of which is not authorized by treaty provisions or permitted by the laws or authorities of the country in which he is stationed. (See § 92.4(a).) Also, a consular officer should refuse to perform notarial acts for use in transactions which may from time to time be prohibited by law or by regulations of the United States Government such, for example, as regulations based on the "Trading With the Enemy Act of 1917", as amended.
(b) A consular officer is also authorized to refuse to perform a notarial act if he has reasonable grounds for believing that the document in connection with which his notarial act is requested will be used for a purpose patently unlawful, improper or inimical to the best interests of the United States. Requests for notarial services should be refused only after the most careful deliberation. § 92.10 Specific waiver in notarial certificate.
A consular officer should comply with all proper requests for the performance of notarial services within the limitations
If the consular officer has reason to believe that material statements in a document presented for notarization are false, and if no basis exists for refusing the notarial service in accordance with § 92.9, he may consider the advisability of informing the applicant that he will perform the service only with a specific waiver of responsibility included in the notarial certificate. Furthermore, a consular officer may, in his discretion, add to the specific waiver in the notarial certificate a statement of verifiable facts known to him, which will reveal the falsity of material in the document. However, normally a consular officer shall exercise great caution not to limit the general privilege of a United States citizen while abroad to execute under oath any statement he sees fit to make, including mistaken, unnecessary, and even frivolous state
(b) By consular officers. A consular officer should not usually prepare for private persons legal documents for signature and notarization. (However, see the provisions in § 92.24 regarding the preparation of affidavits.) When asked to perform such a service, the consular officer should explain that the preparation of legal forms is normally the task of an attorney, that the forms used and the purposes for which they are used vary widely from jurisdiction to jurisdiction and that he could not guarantee the legal effectiveness of any document which he might prepare. The person desiring the preparation of a legal document should be referred to such publications as Jones Legal Forms and The Lawyers Directory with the suggestion that he select or adapt the form which appears best suited to his needs. The consular officer may, in his discretion, arrange to have a member of his office staff type the document. If the document is typed in the Foreign Service office, the fee for copying shall be collected as prescribed under the caption "Copying and Recording" of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.12 Necessity for certification of notarial acts.
A consular officer must execute a written certificate attesting to the performance of a notarial act. This certificate may be inserted on or appended to the notarized document (see § 92.17 regarding the fastening of sheets). The certificate evidences the performance of the notarial act. Failure to execute this certificate renders the notarial act legally ineffective. Each notarial act should be evidenced by a separate cer
tificate; two or more distinct notarial acts should not be attested to by one certificate.
Form of notarial certificate.
The form of a notarial certificate depends on the nature of the notarial act it attests. (See §§ 92.18 to 92.48 for discussions of the various forms of notarial certificates.) Rules pertaining to venue, and signing and sealing, are common to all notarial certificates.
§ 92.14 Venue on notarial certificates.
(a) The term "venue" means the place where the certificate is executed. The venue must be shown on all notarial certificates to establish the qualifications and sphere of authority of the notarizing officer to perform the notarial act. The items characteristic of a typical venue, in the order of their appearance in the certificate, are as follows:
(1) Name of the country (or dominion, Territory, colony, island, as appropriate);
(2) Name of province or major administrative region (if none, this may be omitted);
(3) Name of local community (city, town, or village);
(4) Name of the Foreign Service post. (b) When a notarial act is performed, and the notarial certificate executed, at a locality in a consular district other than the locality in which the Foreign Service office is situated, the venue should mention only the name of the country (or dominion, territory, colony, island, as appropriate), and the name of the consular district.
(c) The venue used at a Foreign Service post which has not been officially designated as an embassy, legation, consulate general, consulate, or consular agency should bear the notation "American Consular Service" in place of the post name.
Signing notarial certificate.
The notarizing officer should sign a notarial certificate on the lower righthand side. The name and full official title of the consular officer should be typed, stamped with a rubber stamp, or printed in ink on two separate lines immediately below his signature. When the notarizing officer is assigned to a Foreign Service post in both a diplomatic and consular capacity, he should use his
Sealing the notarial certificate. The notarizing officer should seal a notarial certificate with the impression seal of the post on the lower left-hand side of the certificate. A notarial certificate executed at a Foreign Service post which has not been officially designated as an embassy, legation, consulate general, consulate, or consular agency should be sealed with an impression seal bearing the legend "American Consular Service" and the name of the locality. § 92.17
Fastening of pages.
When the instrument or document to which a notarial act relates consists of more than one sheet, or when the notarial certificate will be attached and not written on the document itself, the consular officer should bring all the sheets comprising the document together under his official seal.
SPECIFIC NOTARIAL ACTS
Oaths and affirmations defined. (a) Oath. An oath is an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. In a broad sense the word "oath" includes all forms of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truly, and in this sense it includes "affirmation".
(b) Affirmation. An affirmation is a solemn and formal declaration or asseveration in the nature of an oath that a statement, or series of statements, is true. When an oath is required or authorized by law, an affirmation in lieu thereof may be taken by any person having conscientious scruples against taking an oath. As a general rule, an affirmation has the same legal force and effect as an oath.
the person taking the oath answers, “I do."
§ 92.19 Administering an oath.
The usual formula for administering an oath is as follows: The officer administering the oath requests the person taking the oath to raise his right hand while the officer repeats the following words: "You do solemnly swear that the statements set forth in this paper which you have here signed before me are true. So help you God." Whereupon
§ 92.20 Administering an affirmation.
In administering an affirmation the procedure followed is generally the same as in the case of an oath, but the formula is varied by the use of the following words: "You do solemnly, sincerely, and truly affirm and declare that and this you do under the pains and penalties of perjury”.
Notarial certificate to oath or affirmation.
The written statement attesting to the administration of an oath or affirmation is known as a jurat. The jurat must be signed and sealed by the notarizing officer (see §§ 92.15 and 92.16 on signing and sealing notarial certificates).
An affidavit is a written declaration under oath made before some person who has authority to administer oaths, without notice to any adverse party that may exist. One test of the sufficiency of an affidavit is whether it is so clear and certain that it will sustain an indictment for perjury, if found to be false. An affidavit differs from a deposition in that it is taken ex parte and without notice, while a deposition is taken after notice has been furnished to the opposite party, who is given an opportunity to cross-examine the witness.
§ 92.23 Taking an affidavit.
The consular officer taking an affidavit should
(a) Satisfy himself, as far as possible, that his notarial act will be acceptable under the laws of the jurisdiction where the affidavit is to be used (see § 92.5);
(b) Require the personal appearance of the affiant at the time the affidavit is taken;
satisfactory identification of the affiant; and
(d) Administer the oath to the affiant before the affiant signs the affidavit. § 92.24 Usual form of affidavit.
Affidavits are usually drawn by competent attorneys or are set out in established forms. The form and substantive requirements of an affidavit depend principally upon the purpose for which it is made and the statutes of the jurisdiction where it is intended to be used. When a consular officer finds it neces
sary in the discharge of his official duties to prepare an affidavit, or when he assists a private person in preparing an affidavit (see § 92.11 (b)), he should, where possible, consult the pertinent statutory provisions.
Title of affidavit.
Generally an affidavit taken for use in a pending cause must be entitled in that cause so that it will show to what proceedings it is intended to apply, and may support an indictment for perjury in case it proves to be false. If there is no suit pending at the time the affidavit is taken or if the affidavit is not to be used in any cause in court, no title need be given.
Venue on affidavit.
The venue must always be given and should precede the body of the affidavit. (See § 92.14 regarding venue on notarial certificates generally.)
Affiant's allegations in affidavit.
(a) Substance of allegations. Although a consular officer is generally not responsible for the correctness of the form of an affidavit or the manner in which the allegations therein are set forth (see § 92.11(a) regarding the preparation of legal documents by attorneys; § 92.11 (b) regarding the preparation of legal documents by consular officers; and § 92.24 regarding the form of an affidavit), he may, in appropriate instances, draw the affiant's attention to the following generally accepted criteria as regards the substance of the allegations:
(1) Material facts within the personal knowledge of the affiant should be alleged directly and positively. Facts are not to be inferred where the affiant has it in his power to state them positively and fully.
(2) If the matters stated in the affiant's affidavit rest upon information derived from others rather than on facts within his personal knowledge, he should aver that such matters are true to the best of his knowledge and belief.
(3) If the allegations made on information and belief are material, the sources of information and grounds of belief should be set out and a good reason given why a positive statement could not be made.
or exhibited, so that the authority to whom the affidavit is presented may determine whether the affiant's deductions are well founded.
(4) If the conclusions of the affiant are drawn from the contents of documents, such contents should be set out
(b) Veracity of allegations. Consular officers are not required to examine into the truth of the affiant's allegations or to pass upon any contentious questions involved. In many instances the matters referred to in an affidavit will be of a technical or speical nature beyond the officer's general knowledge or experience. However, he may, in certain circumstances, refuse to take an affidavit. (See § 92.9 regarding the types of situations in which an officer might properly refuse to perform a notarial service; also see § 92.10 regarding the waiver and other statements which may be included in a notarial certificate where evidence exists of falsity in the affiant's declaration.) § 92.28 Signature of affiant on affidavit.
The signature of the affiant is indispensable. The affiant should always sign the affidavit in the presence of the notarizing officer.
§ 92.29 Oath or affirmation to affidavit.
Affidavits made before consular officers must be sworn to or affirmed (see § 92.23 (d)).
§ 92.30 Acknowledgment defined.
An acknowledgment is a proceeding by which a person who has executed an instrument goes before a competent officer or court and declares it to be his act and deed, to entitle it to be recorded or to be received in evidence without further proof of execution. An acknowledgment is almost never made under oath and should not be confused with an oath (see § 92.18 (a) for definition of oath). Moreover, an acknowledgment is not the same as an attestation, the latter being the act of witnessing the execution of an instrument and then signing it as a witness. Instruments requiring acknowledgment generally are those relating to land, such as deeds, mortgages, leases, contracts for the sale of land, and so on.
Taking an acknowledgment.
(a) Officers' assurance of acceptability of notarial act. A consular officer taking an acknowledgment should, if possible, ascertain the requirements of the jurisdiction in which the acknowledged document is to be used and execute the certificate in accordance with those
requirements. Not all States or Territories will accept certificates of acknowledgment executed by consular officers other than consuls. Therefore consuls general, vice consuls, and consular agents who are called upon to perform this notarial act should consult the applicable State or territorial law to ascertain whether their certificates of acknowledgment will be acceptable. (See § 92.5 regarding acceptability of consular notarial acts under state or territorial law.) Furthermore, public policy generally forbids that th act of taking and certifying an acknowledgment be performed by a person financially or beneficially interested in the transaction to which the acknowledged document relates. Consular officers should keep this point in mind, especially in connection with acknowledgments by members of their families.
(b) Personal appearance of grantor(s). A consular officer taking an acknowledgment should always require the personal appearance of the grantor(s), i.e., the person or persons who have signed the instrument to be acknowledged. Since the officer states in his certificate that the parties did personally appear before him, failure to observe this requirement invalidates the notarial act and makes the officer liable to the charge of negligence and of having executed a false certificate. A consular officer should never take an acknowledgment by telephone.
himself that the person acknowledging an instrument understands the nature of the instrument. If the person does not understand it, the officer is legally and morally bound to explain the instrument in such a way as to make the person who has signed it realize the character and effect of his act. This duty is particularly important where the signer of a document has little or no knowledge of the language in which the document is written.
(e) Acknowledgments of married women. Some of the States still require that a married woman who has executed an instrument of conveyance jointly with her husband be examined separately by the notarizing officer at the time the acknowledgments of the couple are taken. Consular officers should consult the applicable statutory provisions before taking the acknowledgments of a husband and wife to a document which they have both executed.
§ 92.32 Notarial certificate to acknowledgment.
(a) Title. The notarial certificate evidencing the taking of an acknowledgment is commonly known as a "certificate of acknowledgment" or sometimes simply as an "acknowledgment".
(b) Form. The form of a certificate of acknowledgment varies widely depending on the laws of the jurisdiction where the acknowledged document is intended to be used, the purpose for which the document is intended, and the legal position of the persons who have executed it. Instruments to be acknowledged are frequently prepared on printed forms, the entire contract or deed being on one sheet together with the certificate of acknowledgment. Often the document, including the certificate of acknowledgment, is drawn up in advance by an attorney. In these cases, the consular officer may use the certificate which is already on the document, making whatever modifications are manifestly required to show that the certificate was executed by a consular officer. However, if he finds it necessary to prepare the certificate of acknowledgment, the officer should consult the appropriate reference work for guidance as to the proper form. When no prescribed form can be found, the officer should use the language in Form FS-88. Certificate of Acknowledgment of Execution of an Instrument, inserting the
(c) Satisfactory identification of grantor(s). The consular officer must be certain of the identity of the parties making an acknowledgment. If he is not personally acquainted with the parties, he should require from each some evidence of identity, such as a passport, police identity card, or the like. The laws of some States and Territories require that the identity of an acknowledger be proved by the oath of one or more "credible witnesses", and that a statement regarding the proving of identity in this manner be included in the certificate of acknowledgment. (See § 92.32(b) regarding forms of certificates of acknowledgment generally.) Mere introduction of a person not known to the notarizing officer, without further proof of identity, is not considered adequate identification for acknowledgment purposes.
(d) Explanation of contents of instrument. The consular officer must assure