Proposition 53K1498

Projet de loi relatif à l'acte sous seing privé contresigné par les avocats des parties.

General information ¶

Authors

Ecolo Juliette Boulet
Groen Stefaan Van Hecke
LE Christian Brotcorne
Open Vld Carina Van Cauter
PS | SP Valérie Déom, Thierry Giet, Özlem Özen

Submission date

May 24, 2011

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

lawyer official document

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Voted to reject

VB

Abstained from voting

∉ N-VA

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

Jan. 17, 2013 | Plenary session (Chamber of representatives)

Full source

by Mr. Renaat Landuyt, rapporteur, apologizes and refers to his written report.

Mr. Speaker, this proposal on the Lawyer Act was discussed in the committee and it is ⁇ not my intention to repeat the substantive debate here. I will, on behalf of my group, explain why we will abstain at the vote.

As is often the case, the bill was announced and presented in the House with great courage. There followed hearings that were almost entirely negative and then everyone turned back. Instead of removing the bill, reworking the homework and coming up with something more serious for the day, an outhold compromise was submitted in the committee and then in the plenary session. This is symptomatic for the majority. The same thing happened last week because of the incidents.

The draft law is so outcast — the majority will immediately explain it — that even the title “advocatenakte” is no longer restricted. The new title of the proposal will be "Law Proposal concerning an out-of-hand act jointly signed by the lawyers of the parties". This is the story of a lawyer’s act that eventually no longer exists. Only one proof is given to a signature that will provide a limited added value in the legal debate and in the legal practice.

It is especially unfortunate that people are constantly picking up ideas. This demonstrates the nullity of this bill. It does not add much. It will not harm but also not benefit. It is once again in the margins.

This is ⁇ regrettable. Everyone knows that there is a lot of work on the board in the judiciary. However, we continue to deal with these ackefiets, which are even smaller and become smaller than they were originally. We will therefore abstain from voting.

Mr. Speaker, dear colleagues, at the beginning, the draft law subject to vote had two objectives: on the one hand, it tended to confer evidence force on an act counter-signed by the lawyers of the parties regarding the dates, contents and signatures, and, on the other hand, it organized a simplified homologation allowing certain types of lawyer acts to have access to enforcement force.

Following the hearings conducted within the Justice Committee and discussions between industry professionals, the bill on the act of lawyer was revised in order to focus only on the “proof force” component. For my group, this bill voted in committee and voted today deserves widespread support and retains an obvious legal interest, as we find it useful to give a significant proof value to a private act under private seing counter-signed by lawyers.

We know that many individuals enter into acts under private seing without seeking professional advice on the nature and consequences of their commitments. So many are those who copy leases, for example, and other contracts on the Internet, believing, sometimes mistakenly, that they have been drawn up in accordance with the law, and that this will protect them in case of dispute or allow them to avoid these disputes. This can prove dangerous.

That’s why we want to enable people who wish to increase the probative value and legal certainty of their agreements through the contreseing of the parties’ lawyers and to ensure that they have all the information in their hands at the time of their engagement.

Certainly, lawyers engage their responsibility for the information and warnings made to the parties, who would have had to be advised on the type of contract they needed, on the drafting of it and on compliance with legal prescriptions and the balance of clauses.

In the event of consistent promises made by the parties to each other or to each other, it may be necessary to draw their attention to the importance of the risks they take, unless the act proves to be a false act in the civil sense. He shall be fully faithful to the writing and signature of the parties to the act, both in respect of them and in respect of their heirs or successors.

We hope, in this way, to discourage further disputes and avoid certain quarrels, which can sometimes prove to be dilatory manoeuvres and, above all, to simplify the functioning of our judicial system and modernize it. From the perspective of judicial activity in the strict sense, we can hope that this act will reduce litigation, will have a positive impact on the de-judiciarisation of conflicts and will disengage the courts.

Mr. Speaker, colleagues, this bill has left under the title “Relevant Lawyer Acts” and has gone through a whole history. As far as we are concerned, it has evolved in a positive sense because, as it was originally conceived, it was intended that if an in-hand act was signed by a lawyer of the parties, it would contain a commitment, not only as regards the authenticity of the signature but also as regards the date and content of the agreement and the commitment contained therein. Through a simple homologation, it could then function as an executable title.

From the beginning, we have asked the necessary questions, including what the added value of such an act would be. It is intended to effectively reduce the work of the courts and to enable the common practice of a non-dispute type-approval. However, we had questions about the concrete value added. We did not see such examples abroad. In France such a system has been developed, but there is still insufficient experience with it to be able to clearly demonstrate its added value. However, we have heard an appeal from the court to effectively support this proposal in order to eventually obtain a kind of act that would function between the authentic act and the underhanded act and that would also have a specific proof value.

We also asked whether people would not be unnecessarily hunted for costs and what would be the position of a weaker contract party. Furthermore, we had questions regarding the control of the content of the act and its implementation. There was also discussion about the role mixing. In fact, lawyers are expected to act effectively for their clients and for their interests, while through this act they would also be given a partial mediation role.

We heard the same questions during the hearings organized subsequently. Various experts and stakeholders, such as the court enforcers, asked questions, while several professors and practitioners questioned the importance and value of this lawyer’s act. However, it also became clear that the Orde van Advocaten was effectively requesting party, both on the French-speaking and on the Dutch-speaking side, to come to such a lawyer’s act.

We are pleased and thankful to all colleagues that after the hearing changes and adjustments to the original lawyer’s act could be made. It was important to update the text of this proposal in consultation with the field, the Bar Association and the notaries. Thus, the accelerated type-approval procedure was abolished and the evidence value of this act signed by lawyers was clarified and limited. The fact that a signature is made by the lawyers leads to the fact that the writing and the signature of the parties who have signed this act are authenticated inter pares.

It is therefore primarily about the evidence value of the act signed and the fact that the signature under it belongs to the person who actually wrote the act. This can no longer be denied; it is as if renounced Article 1323 of the Civil Code. At the same time, it is expressly stated that it is important that the lawyer provides the necessary information on the content of the act and the consequences of the fact that an act is signed by the lawyers of the parties having different interests in that act. In this case, the liability of a lawyer will therefore be in question, since he must inform the clients about the legal consequences of the act. This is also stipulated in French law, where in the notarial act the obligation to provide information is also important and where the necessary responsibility is also concerned. In France, however, it is an authentic act of an official appointed by the government, which is still a difference with a lawyer.

Therefore, we support the proposal as it is now formulated. We also hope that we do not evolve into a two-speed justice, in which an in-hand act, for example a rental agreement between a owner and a tenant, is considered inferior to an act co-signed by the lawyer of the tenant and the lawyer of the owner. We are afraid that the act co-signed by the lawyer, would be perceived as being a better, safer and undisputed act.

After all, at the present moment we still have a right of commitment and a right of contract, where we say that the will-execution of the parties is important and that will-execution together forms the basic value of an agreement between the parties.

Despite the fear of a two-speed justice, we support the present proposal.

However, we expect that in the future it will be examined how the document signed by lawyers is effectively used. It should also be assessed whether the number of disputes will decrease. One of the options is that questioning a signature would no longer be discussed. The way of providing information should also be evaluated. Finally, in particular, people should not be hunted at additional costs to get them to obtain a slightly stronger agreement with the same content.

Mr. Speaker, Mrs. Minister, colleagues, I agree with Mrs. De Wit when she states that there are other priorities, but I disagree with her when she suggests that the present proposal would be worthless.

It will only happen to you to be confronted with a debtor who acknowledges his guilt and places his signature, when subsequently that debtor or his heirs claim in vain that he does not know that signature. As a result, one becomes involved in a procedure and must also pay the costs of the counterfeiting procedure.

Well, for us, the one who places a signature is bound. It is therefore logical that the signer can be appealed to it in rights.

This is exactly what we do with the proposal presented: a special proof force is granted to the date, the content of the act and the signatures of the parties when they are placed in the presence of a counselor. This means that the burden of proof in these cases is reversed. The person who wishes to challenge his signature will have to pay the costs himself when applying to the counterfeiting procedure. That seems to me nothing more than logical.

Colleagues, the present proposal is indeed not the highest priority, but it contributes to the legal certainty. It puts responsibilities where they should be. We will approve this proposal.

Colleagues, I acknowledge that this bill has undergone some evolution, but that the title has remained unchanged. This may cause confusion. Therefore, I have asked the colleagues who have approved the proposal in the committee whether it is not better to change the title. I have received an agreed response. Therefore, the colleagues who have approved the bill now ask that the new title should be: “Law proposal concerning the hand-in-hand act co-signed by the lawyers of the parties.”

Mr. Speaker, colleagues, we were not in favour of what was originally called the “lawyer’s act”. We thought it was a blown balloon. Neither are we in favour of the empty thing that is now called “the in-hand act co-signed by the lawyers of the parties”.

I am grateful to colleague Van Cauter because she came to me before the beginning of the discussion asking me if I agreed with that. Well, I definitely agree there. After all, when one needs a mouthful like this to name something, and ⁇ when it comes from lawyers, one knows that there is something wrong. That title only confirms my position.

Mutatis mutandis I can make almost the same arguments as I did before. However, I would like to add that the act of a lawyer is even more damaging to the law in our society and to the reputation of the lawyer’s profession than the “lawyer’s ageing interruption order.” A real lawyer, in my opinion, chooses an act, for a friendly settlement, for negotiations that lead to it, and not for an intermediate form.

The cowboys among the lawyers will benefit, those who want to engage in collusion, but the dangers of what lies here are far greater than the revenue it can provide for society and for the parties involved, more specifically for the weaker parties in the negotiations of a dispute.

I repeat it: wise lawyers will not choose this. That is my conviction. I will say it in somewhat more original terms: I think that this is the coïtus interruptus of the right of evidence; we are opposed to coïtus interruptus; we vote against this.

Mr. Speaker, dear colleagues, I would be happy to admit to Mrs. De Wit that this text will not revolutionize judicial practice, especially for lawyers. I also consider that the initial proposal was much more ambitious than the one presented to us today. As a person, I regret that we have abandoned the enforceability that could have been granted to this act of lawyer beyond the probative force found therein as regards the writing and the signature of the parties. And this applies not only to those who are parties to the act, but also to their heirs or inheritors. The French legislation has this advantage over the text that we will vote in a moment to allow this executive character as well.

I also know that this proposal concerned the notarial world, insofar as it believed to detect a breach in its monopoly, which could be put at risk. We tried to reassure this sector by explaining, in particular, that there was no question that, through the act of lawyer with enforceable force, lawyers could conclude real estate sales.

It is still that the hearing and the need to find consensus within our committee have resulted in this text – which is, of course, less strong than the original version, but is not yet deprived of interest, contrary to what some claim. I also do not see how it could be detrimental to the profession of lawyer, as Mr. just said. The shoes.

The new title of the text does not bother me, but it well translates the weakening of our starting goals. In this context, as in the committee, my group and I will vote on the text that is proposed to us.

Mr. Speaker, this bill stipulates that the lawyer, who, by the way, signs, must fully inform the parties concerned about the legal effects of the act. This will enable the parties to clarify the importance of the commitments made. This may also prevent certain disputes over aspects of the signature between the parties; disputes that sometimes constitute delaying tactics and thus create an additional burden for the courts.

I believe that, where possible, we are creating a positive impact on the effort to remove conflicts from the judicial sphere. This is an important bill on which the applicants have worked hard.