List of Legal terms to revise

Abuse of right = The use of a right for a purpose other than that provided by law constitutes an abuse of right. This notion is frequently used by the tax authorities to reclassify transactions and subject them to the tax that they attempted to evade.

Accretion (clause) = A clause by which the deceased’s portion of an estate is added to that of the survivors. May refer to the spouse, a co-contracting party, etc.

Acquest = This term is used to designate property acquired by spouses during the course of their marriage as a result of their income. In the statutory marital regime known as communauté réduite aux acquêts (ownership in common), property is considered common if it was acquired jointly by both spouses or by only one of them.

Affidavit = A written instrument drawn up by a public official (notaire) or an examining magistrate which sets out the declarations of several persons bearing witness to facts of common knowledge.

Agreement related to a future succession = This type of agreement, prohibited by law, refers to a succession which has not yet been initiated.

Authenticity = Nature of an official deed drafted by a notaire and received by a competent public official.
- Basic meaning: that which is accurate, correct and true.
- Etymological meaning: “self-sufficient”. An official deed stands by its own strength.
- In the legal sense, an official deed:
is issued by a competent public authority
is accompanied by certain formal procedures (formalities)
is signed by said authority
has powerful effects: legal date, probative force, enforceability.

Authorised clerk = An employee and holder of a notaire degree who is authorised by the employing notaire to obtain clients’ signatures when an instrument is executed.

Benefit of inventory = The right of an heir to bear hereditary debts only within the limit of the assets inherited.

Building lease = A lease agreement pertaining to a parcel of land under which the lessee agrees to build one or more buildings on said land.

Chamber of Notaries = A notarial organisation at the departmental or inter-departmental level charged with disciplinary, leadership and management tasks relating to the profession.

Chancellery = Departments of the French Ministry of Justice responsible for oversight of the profession, review of notaires’ appointment files, and the establishment, creation and closing of practices. It is the CSN’s primary point of contact. The Chancellery is associated with the Démarche Qualité Notariale (Notarial Quality Control) working group, particularly in the area of professional ethics.

Client account = An account opened for each client. The notaire is required to demand a retainer fee before executing any instrument. The client account may not be a receivable and must be settled at the end of the transaction; if there is no activity for more than three months, it is posted to the Deposits and Consignments Office.

Codicil = An instrument subject to the formal procedures of a will which amends or cancels a previous will.
Collateralisation = A type of guarantee between a debtor and a creditor involving the provision of personal or real property (~pledge)

Commercial lease = A lease pertaining to a building in which the lessee runs a commercial or skilled craft business which he owns. Commercial leases are subject to a very special legal system (decree of 30 September 1953), characterised by a right of renewal in favour of the lessee.

Commodatum = A type of loan involving an object to be returned in kind.

Communal estate = A marital regime whereby the couple’s property is jointly owned by both spouses and divided upon dissolution of the marriage. In France, the statutory regime to which couples who have not made any special provision are subject is known as communauté réduite aux acquêts (ownership in common). According to this scheme, property is jointly owned only if acquired by the couple or by one of the members of the couple during the course of the marriage. Property owned prior to the marriage or received by way of inheritance by either of the spouses is not considered part of the communal estate.

Community property = As distinct from separate property, community property is part of the communal estate and is equally divided between the spouses upon dissolution of the marital regime as a result of either death or divorce.

Concealed gift = The act of transferring property which, though appearing to be a sale, in effect conceals a gift, since the sale price is not actually paid by the person receiving the object.

Conflict of laws = Since all countries do not have the same law, when nationals of several countries or of the same country are in another country, it often occurs that several different or even conflicting rules may be applied to their relationship or situation.

Contributions to a business = Assets pooled by each of the partners when a company is founded.

Copy or simple copy = A literal, uncertified reproduction of an original, usually by photocopy.

Creditor = Although all creditors have the right to demand payment of a sum of money, they are not all equal: - an ordinary creditor has no security for the debt,
- a mortgage creditor has the benefit of a “right of lien” by which he is guaranteed repayment of the debt through the proceeds of the sale of the mortgaged real property before any other creditors.

Customary gifts = Presents are not subject to the legal rules governing gifts if they do not exceed standards related to the net worth of the giver.

Deduction in advance = A person may deduct one or more assets from the total estate being distributed in exchange for something owed to him.

Deposit = A sum which the notaire is required by law to request prior to the signing of the instruments. The retainer fee must be sufficient to cover all expenses, fees, disbursements and emoluments as they become payable.

Disbursements = Sums paid out by the notaire on behalf of the client to compensate the various persons concerned (mortgage registrar, surveyor, managing agent) in connection with the drafting of the instrument, by obtaining the necessary supporting documents.

Disposable portion = The portion of an estate which a person may transfer freely (by gift or will) without compromising the rights of the forced heirs (descendants or ascendants). It is based on the composition of the donor’s or testator’s family. It equals one-half if the deceased leaves one child, one-third if there are two children, and one-fourth if there are three or more children. If there are no children and the deceased leaves ascendants, the disposable portion equals three-fourths.

Division by ascendant = An ascendant may himself determine how his property should be distributed among his heirs. He may do so through a gift, in which case the division takes effect during his lifetime, or through a will, in which case his heirs take possession of their share only after his death. When distributing the shares among his heirs, the ascendant must respect the rights of forced heirs.

Division (of property) = A division is carried out to end a situation of joint ownership characterised by the addition of ownership rights of several persons to the same asset or to the same estate. Each of the persons concerned receives a portion.

Emoluments and honoraria = There are two methods of compensating notaires:
- Emoluments are mandatory fixed fees paid to ministerial officers in return for their work.
- Honoraria are fees paid for services and procedures (such as consultations), and for instruments for which fees are not set (relating to activities in a competitive sector). These fees may be adapted to the case at hand and must be agreed upon in advance by the notaire and his client (rules set forth in Article 4 of the decree of 8 March 1978).

Instrument en brevet = An official deed not kept by the notaire (e.g.certain powers of attorney, certificate of ownership)

Enforceability = The property of an official deed by which the instrument produces the effects of a final judgement, without the need of a prior court decision.

Enforceable copy = An authentic copy of the original document certified and preserved by a notaire, along with the writ of enforcement; it is presented, for example, to the bailiff to obtain execution of a contract (e.g.leases, acknowledgement of debts). The former term grosse is still in use (since it was written in large type in the past).

Exheredation = In everyday speech, the verb “disinherit” is more commonly used than “exheredate”. Under French law, it is impossible to disinherit one’s forced heirs (children, parents, etc.).

Filing = Provision of notarised documents to the tax authorities (filing at the mortgage registry and registration).

Forced heirship = The portion of the estate which may not be freely disposed of by way of gift or will and must revert to the legal heirs (ascendants and descendants).

Foreign origin = A situation has the quality of foreign origin if it involves several national legal systems. This may include persons of different nationalities, persons in a country other than their own, property located in other countries and so on.

Formalities = All the formal procedures carried out prior and subsequent to the signing of an instrument.

Fructus = An element of the right of ownership that entails the ability to enjoy the fruits generated by the asset to which the right is attached. An example of this is rent from real property.

Full adoption = Adoption by which the relationship between the family of origin and the adopted child is severed and the latter is considered as a legitimate child of the adoptive family.

Fungibility = Property is fungible when it can be replaced by other property without this having any effect on the net worth of those who own it.

Gift by hand = gift of a chattel given from hand to hand.
Gift = An agreement whereby a person transfers his or her right of ownership (or a portion thereof) concerning an object or a group of objects to another person, without consideration. The person who gives is the donor and the one who receives is the donee.

Index of instruments = A register containing a chronological list of all the instruments executed by an office during the year; one copy is kept at the office and another is sent to the clerk of the Tribunal de grande instance (regional court).

Initials = An abbreviated signature placed at the bottom of the pages of a notarial instrument and below the references contained in said instrument.

Inspection = An audit of a notaire’s practice, generally conducted annually by notaires from another territorial department, with the assistance of a public accountant, who inspect the accounting records, the operation of the practice and the tax situation of the notaire being inspected. An inspection report is sent to the president of the Chamber of Notaries and to the public prosecutor.

Instrument = A written document evidencing an agreement made between one or more persons. A distinction is made between:
- Private instrument: Instrument drawn up by co-contracting parties and signed only by them, which can be easily contested; each party can deny having signed it.
- Official deed: Instrument drawn up and received by a person having official powers. These persons include administrative authorities (ministers, prefects and mayors), judicial authorities, civil registrars, and public officials such as bailiffs, court clerks and notaires. An official deed possesses overriding privileges of ordinary law. It is authoritative on its own (probative force) and is executed without the need of judicial recognition (enforceability). Where private agreements are concerned, notarial instruments are the main types of official deeds.

Inter vivos gift = The act by a person during his lifetime of distributing his property, in whole or in part, among his heirs. The transfer of property is immediate and final; however, the donor may retain right of usufruct to the donated property.

Intestate = In the absence of a valid will. Property comprising the estate of a person who dies intestate is distributed among the heirs according to the statutory rules.

Joint and several liability = Under this type of liability, each debtor may be required to repay the full amount of the debt to the creditor.

Joint ownership = A situation in which several persons have the same right to particular property. An example of this is children who inherit the family home upon the death of their parents.

Life interest = A right that is terminated upon the death of its holder.

Liquidation = In civil law, this refers to the operation that precedes the partition of jointly owned property and consists of determining the net assets to be distributed, after all debts are paid out of the gross assets.

Marital regime = Set of rules which governs the interests of spouses during their conjugal life and determines the division of their assets upon dissolution of the marriage. It may be a community property regime, based on the principle of joint management, or a separate estate regime, whereby each spouse is free to manage his/her own assets.

Meuble (biens meubles) = In French legal terminology, meuble refers to movable property, a category defined to include not only movable objects but intangible rights such as shares in a business. See also “meubles meublants”.

Meubles meublants = The French legal term for what are commonly referred to simply as meubles (furniture): bed, table, chair, decorations and so on.

Ministerial officer = A person appointed by the government to hold an office involving the performance of an official function under government oversight.

Monopoly/Non-monopoly = - Monopoly, or reserved domain, is the economic term that encompasses all the instruments which only a notaire can receive (gift by deed, mortgage, will in proper notarial form) or which relate to the real estate register (sales, servitudes, mortgage charge, etc).
- Non-monopoly includes all items that do not come under the area of expertise reserved exclusively for notaires, including instruments related to business activities (sale of business assets, companies, commercial leases, real estate negotiations).

Mortgage = The right given to a creditor to secure a debt. A mortgage, which is (generally) secured by real property, allows the creditor to sell the property and to be paid from the proceeds of the sale, in case of non-payment of the debt. A mortgage does not eliminate the mortgaged property from the debtor’s net worth. The latter continues to have full access to it. The property may be sold or given away, in which case the creditor is still able to request the sale thereof.

Mortgage copy = A copy of the original document made for and preserved at the mortgage registry and from which the real estate register is updated.

Mortgage list = The list of mortgage and other registrations encumbering real property (servitudes, mortgage loans).

Mortgage registry = The administrative department belonging to the General Tax Directorate of the Ministry of Finance, responsible for land registration and keeping the real estate register. It compiles all notarial instruments related to this area and collects certain taxes (land registration tax, registration fees, etc.). See also “land registration”.

Notaire’s clerk = An office employee. In the past, a distinction was made between clerks and notaires’ employees. With the new Collective Agreement, these titles were replaced by the specific titles of the various employees (manager, technician, employee); however, the old titles (head clerk, unclassified clerk, clerk responsible for formalities and so on) are still used.

Obligation to support = Obligation created by law to provide assistance to a close relative (child, parent, etc.) as needed.

Original document = The original of an official deed. It serves as proof of the content of the deed as certified by the notaire, unless a plea of forgery is filed.

Panonceau = Traditional, official sign of notaires’ offices (dating back to Philippe le Bel).

Partnership of acquests = Spouses subject to a separate estate regime may choose to set up a joint estate that will be divided upon dissolution of the marriage.

Pledge = Property provided by a debtor to a creditor as security. The debtor is dispossessed of the pledged property. The creditor holding the right of pledge may sell the pledged property to obtain payment. In this way, he has priority over other creditors.

Pre-emption = Statutory preferential right of purchase granted to individuals and certain local governments and requiring sellers to give prior notice of a sale.

Preciput = Before a division of property is carried out, certain persons may have the (preferential) right to collect a sum of money or specific asset. This right may be conferred by means of a gift or to the spouse through a pre-nuptial agreement.

Probative force = Property of an official deed by which the notaire’s signature on the instrument is evidence of its content and date.

Professional privilege = Absolute prohibition against disclosing to third parties any information of which the notaire becomes aware in the course of his duties, unless specifically authorised by law. Professional privilege applies to the notaire and anyone working in his office.

Property registration = A set of rules designed to inform interested third parties of the legal status of real property by means of the real estate register maintained by the public authorities.

Quasi-usufruct = Usufruct of an asset which may disappear when used. The holder has the right to dispose of the asset (abusus), in addition to the right to use it (usus) and to the fruits thereof (fructus). He therefore possesses the three elements of full ownership. There are, however, two differences with respect to full ownership: the quasi-usufructuary has an obligation of restitution, either in value or in kind, and his right is limited in time, generally his lifetime.

Rate list = The offficial scale established by a decree used to calculate the total emoluments charged by notaires.

Receipt/Discharge = - A receipt is a voucher showing that the client provided funds or securities to the notaire. - A discharge is a document by which the client certifies receipt of the documents pertinent to him or acknowledges proper receipt of the notaire’s advice.

Registration = The tax department responsible for collecting transfer taxes on property given as gifts or for valuable consideration.

Registration certificate = An administrative form filed at the French mortgage registry, which is used for obtaining tangible security (mortgages, liens, etc).

Renovation lease = A lease agreement pertaining to a building under which the lessee
(generally a company, such as an HLM [moderate rent housing] organisation) agrees to renovate the property for the purpose of renting it out for residential occupancy during the term of the lease.

Report = When an heir has received an asset or sum of money by way of a gift, it is included (reported) in the total estate being partitioned in order to restore balance among the heirs.

Request for documents = A set of documents, generally of an administrative nature, collected by the notaire prior to the signing of a contract or reservation agreement

Seal = A seal containing the symbol of the French Republic and the name of the notaire affixed to notarial instruments and certifying that the instrument was issued by a public official.

Separate property = In the statutory regime of joint estate of spouses regulated by the French Civil Code, this refers to property that belongs to either one of the spouses and is therefore not considered as part of the communal estate, either because it belonged to one of the spouses prior to the marriage or because it was received through an inheritance. Upon dissolution of the communal estate, separate property is not divided and each spouse keeps his or her own property.

Sharing of acquests = This marital regime may be chosen by spouses through a pre-nuptial agreement. During the marriage, the spouses manage their assets independently, as if they were subject to a separate estate regime. Upon dissolution (by death or divorce), each spouse is entitled to one half of the property acquired by the other during the marriage.

Simple adoption = Adoption which allows the relationship between the child and the family of origin to continue.

Stamp = Revenue duty collected for an instrument and calculated on the basis of the number of pages.

Statement of account = A statement of expenses provided by the notaire after completion of all the formalities: it lists all fees of any kind paid to the Public Treasury, as well as disbursements and emoluments or honoraria.

Statutory price = Method of calculating a notaire’s emoluments, expenses, disbursements and honoraria based on application of the rate list; in case of a dispute, the matter may be reviewed by the Chamber of the territorial department concerned or by the courts.

Sub-office = Subsidiary office of a practice located in another town.

Subdivision of property = The right of ownership to an object consists of three elements: the right to use the object, the right to collect the fruits thereof (profits), and the right to dispose of it (by sale, gift, etc.). Subdivision of property consists of giving to various people the different elements of the right of ownership of an object: for example, one person will have the right to use the object and collect the fruits thereof (known as the usufructuary), and another will have the right to dispose of it (known as the bare owner).

Succession = Transfer of an estate of a deceased person or total estate thus transferred.

Surety = A person who guarantees the execution of a contract for one of the parties thereto in case of default by the other party. A “personal surety” is one whose commitment simply consists of taking the place of the defaulting party. A “real surety”, on the other hand, involves a pledge of property as guarantee in the form of a mortgage.

Tax collection service = An administrative department under the Ministry of Finance responsible for collecting registration fees.

Land registration tax (taxe de publicité foncière, or TPF) = The sum paid by the notaire on behalf of the client to the mortgage registry when the instrument pertains to real property.

Tontine = An agreement whereby several people acquire an asset jointly and use it throughout their lifetime, and full ownership of which reverts to the last surviving party.

Universal communal estate = A marital regime whereby all the couple’s property is jointly owned by both spouses and equally divided upon dissolution of the marriage.

Use (right of) = One of the three elements of the right of ownership, allowing the holder to use the asset.

Usufruct = The right to use and enjoy the asset to which the right is attached. The usufructuary may not dispose of the asset (by selling it or giving it away).

Will = Instrument by which a person decides how his estate should be settled.

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