DIE NOTARIELLE URKUNDE UND DIE NATURALEXEKUTION: Eine rechtsvergleichende Untersuchung über die notarielle Urkunde und ihre Fähigkeit bzw. Geeignetheit als Vollstreckungstitel sowohl für die Geldexekution als für die Naturalexekution

Abstract

This research faces the problematic of the authentic instrument drawn up formally by public notaries as a suitable enforcement instrument, especially related to their 'enforcement in natura' or their specific performance under the scope of national and European legislation. Although the authentic instrument is a well known enforcement instrument in civil law countries due to the Brussels Convention on jurisdiction and the enforcement of Judgements in civil and commercial matters (modified by the Council Regulation (EC) 44/2001, of 22 December 2000) the authentic instrument has gained importance and could well play in the future an important role. It is essential not to forget that under the scope of the Brussels Convention a document which has been formally drawn up or registered as an authentic and is enforceable in one Contracting State shall be enforceable in the State in which enforcement is sought. Therefore the authentic instrument can be enforced in a country in which these instruments are unknown or even that they do not allow their enforcement, when claim of specific performance is being seeked. As a result, it is our duty to establish whether in the civil law countries a common 'ratione materiae' for the authentic instruments does exist and if this enables us to speak of a 'Common European Authentic Instrument'. Therefore main interest lies in the compared study of the different forms of public notaries as well as their capacity of drawing up enforceable instrument in Germany, France, Belgium, Spain, Portugal, Italy and Austria under national legislation. Throughout the above mentioned countries different legal situations are to be taken into account, but they all allow the enforcement for a claim of payment. On the other hand Germany, Austria, Portugal do allow the specific performance, but in France, Italy and Spain this is not the case. Therefore is it possible to modify or reform the legislations or are we in front of an unavoidable obstacle. At this stage we should point out that in recent times a discussion towards reintroducing specific performance as a remedy has been put forward and adopted by some legislators. Last but not least, special attention is also payed to the challenges that the European Notaries are and will be facing in the so called European Integration Process and their possible solutions.