Facts

The Notaries Commission of the Canton of Aargau imposed a disciplinary fine of CHF 1'500.-- on the appellant, a lawyer and notary. The grounds were deficiencies in the public certification of three inheritance contracts (X of 28 September 2015, Y of 15 December 2016 and Z of 27 September 2017). The Department of Economy and Interior carried out an inspection on 15 December 2017 and a follow-up inspection on 28 September 2018.

The Notaries Commission classified contracts X and Y as inheritance renunciation contracts (Art. 495 para. 1 CC). It reproached the notary for not listing the potential heirs (daughters and sons, respectively) as parties and for not including them in the witness certifications. Contract Z mixed elements of an inheritance contract and a testamentary disposition, which was impermissible (numerus clausus). The violations concerned the clarity requirement under § 28 para. 2 BeurG/AG as well as Art. 512 in conjunction with Art. 499-504 CC.

On 4 December 2018 the Notaries Commission resolved to formally open disciplinary proceedings; the resolution was communicated to the notary on 7 January 2019. The Administrative Court of the Canton of Aargau, 3rd Chamber, dismissed the appeal on 13 December 2019.

By way of a public law appeal to the Federal Supreme Court, the notary requested full establishment of the facts and discontinuation of the proceedings, alternatively a disciplinary fine of CHF 100.--, and subsidiarily remittal. The lower court and the Notaries Commission waived a response.

Points in dispute:

  • Limitation of disciplinary prosecution concerning Y and Z (§ 40 BeurG/AG)
  • Arbitrary establishment of facts and assessment of evidence, violation of the right to be heard (Art. 29 para. 2 Cst.) in the classification of the contracts
  • Substantive breach of professional duties (clarity requirement, formal requirements for inheritance contracts)
  • Proportionality of the fine

Considerations

1. Admissibility This is a final cantonal decision in a public law matter (Art. 82 lit. a, Art. 86 para. 1 lit. d, Art. 90 FSCA). The notary has standing (Art. 89 para. 1 FSCA); the appeal was filed in due form and within the time limit. The application of cantonal law is reviewed only for arbitrariness; for constitutional complaints the qualified duty to raise and substantiate objections applies (Art. 106 para. 2 FSCA). The Federal Supreme Court bases its decision on the facts established by the lower court unless they are manifestly incorrect (Art. 105 FSCA).

2. Limitation Under § 40 para. 1 BeurG/AG, disciplinary prosecution becomes time-barred one year after the Notaries Commission becomes aware of the incident; any investigative or procedural act interrupts the period (§ 40 para. 2), and absolute limitation applies after ten years (§ 40 para. 3). By analogy with Art. 19 FMLA, the formal opening of disciplinary proceedings, requests for statements and taking of evidence count as interrupting acts; internal administrative directions do not. The period for Y and Z began on 15 December 2017. The resolution of 4 December 2018 interrupted the period within the one-year time limit; by analogy with Art. 309 para. 3 CrimPC, the lower court was entitled to rely on the date of the resolution rather than the date of communication, especially as the notary did not substantiate an arbitrariness complaint on this point. The resolution of 6 March 2018 was, according to the file, merely an announcement and not a formal opening. The opening was neither unnecessary nor an abuse of rights; the length of the proceedings was partly due to the notary's refusal to submit documents. There is no violation of good faith (Art. 9 Cst.) or of a fair procedure (Art. 29 para. 1 Cst.). The complaint of violation of 'ne bis in idem' did not need to be examined.

3. Establishment of facts and right to be heard Arbitrariness exists where the meaning and scope of a piece of evidence are manifestly misjudged or important evidence is disregarded without objective reason. The interpretation of the contracts was carried out according to natural or normative consent (Art. 18 CO). The lower court relied on the wording of the contracts (consent and inheritance renunciation of the descendants, renunciation of the compulsory portion by the sons) and on the position of the descendants as potential heirs. Whether a natural or normative consent existed was immaterial, since the notary did not substantiate that the findings were untenable; the declarations of intent could be understood in good faith as an inheritance renunciation. The anticipatory assessment of evidence, which dispensed with questioning the parties, was not arbitrary, especially as the notary himself did not explain what new findings could have been expected. There is no violation of Art. 29 para. 2 Cst.

4. Substantive breach of professional duties Inheritance renunciation contracts are inheritance…