Notarized power of attorney abroad: when can it be considered valid?
The power of attorney to sell issued abroad is valid in Italy if it meets the authentication requirements required by national law: therefore, the foreign notary, in accordance with the provisions of art. 2703 c.c., must certify with certainty the identity of the subscriber and also that the signature of the latter is affixed in his presence.
This is the principle enshrined in the Second Civil Chamber of the Court of Cassation in its recent judgment no. 17713 of 2 July 2019, by which, in ruling on the invalidity of a power of attorney to sell issued abroad before an American notary in the state of Pennsylvania, referred to the applicability of Article. The Court of First Instance ruled that the act conferring powers of representation is valid, in relation to its form, if it is considered as such by the law of the State which governs its substance, or by the law of the State in which it is carried out. As pointed out by the Court, this provision must necessarily be connected with Royal Decree 1326 of 10 September 1914, Article 54 of which prohibits the notary public from drawing up contracts involving persons who are not assisted or authorised in the manner expressly provided for by law.
The dispute examined by the Supreme Court arose from the application for nullity of a power of attorney to sell a rustic fund and the related deed of sale filed by the actress against her husband, because the power of attorney had a different date of birth from that of the actress and lacked the identification of the two witnesses. In upholding the judgment of the Court of Appeal of Naples, which had declared the ineffectiveness of the deed of sale, the Court of Cassation stated that the different identities of the person who signed the power of attorney and the failure to mention any identification documents examined are elements likely to exclude, for the notary, the performance of the verification activity required by Article. 2703 c.c.
The ruling of the Court of Cassation confirms an address already expressed in many previous cases (Cass. SS.UU., The Court of Cassation, Section II, sentence 22/05/2008 no. 13228) and recently reaffirmed in sentence no. 26951 of 15/11/2017 by which the supreme judges accepted the objection of inadmissibility of the counterclaim for nullity of the special power of attorney issued in Switzerland, because the certification activity carried out by the notary was not attached, or the certification that the signature had been affixed in his presence by a person whose identity had been verified.
The fact, therefore, that the American notary public authenticated the signature affixed by the plaintiff within the meaning of Articles 3 to 5 of the Hague Convention, and had affixed the apostille in accordance with the provisions of that convention, does not relieve the public notary of the obligation to correctly identify the person conferring the power of attorney, since it constitutes, in respect of that verification activity, a substantive guarantee from which the Italian legal system cannot derogate.