Is a verbal exchange required when taking an acknowledgment?

An acknowledgment is typically defined as a declaration or an indication by the signer of a document, in the presence of an authorized officer, that he or she executed the document voluntarily for the purposes therein expressed. The question arises, what constitutes an "indication" or "declaration"?

"...the person whose acknowledgment is taken must in some way indicate to the officer that the execution of the instrument is his act and deed." (1 Fla Jur, Acknowledgments §11, e.s.)

The phrase "in some way indicate" does not limit the ceremony to the notary formally asking the signer to give an acknowledgment. If a person very willingly and happily presents a document for notarization or executes the document in the notary's presence, these may be sufficient "indications", at the notary's discretion, that the execution of the instrument was the signer’s voluntary act and deed.

Notice that, at least in Florida, the term “acknowledgment” is not defined by statute. The courts have upheld:

“In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.” (State v. Hagan, 387 So.2d 945)

The courts have also stated that the term “acknowledgment” is a term of common usage, and can be given its plain and ordinary meaning (State v. Sailer, 645 So.2d 1114). In its ordinary sense, one can “acknowledge” anything without formally declaring it. For example, if one wanted to acknowledge that the weather is cold today, they could wear a heavy coat. This is an "acknowledgment" in the ordinary sense of the word.

An acknowledgment is not an “unequivocal act” like administration of an oath as defined in Youngker v. State, 215 So. 2d 318. There is nothing in any statute or case law, at least in Florida, that clearly defines the taking of an acknowledgment as a verbal exchange.

"If a document is willingly signed in the presence of the Notary, this can serve just as well as an oral statement of acknowledgment.” (Fla. Notary Law Primer, 12th ed., p. 23)

However, particularly if the signer is not well known to you or you are unsure about the signer's willingness to sign, it is recommended that a formal declaration be required, which may be accomplished by the notary asking the signer, "Do you acknowledge that you have executed this document voluntarily for the purposes therein expressed?", to which the signer would answer "Yes" or "I do".

Why we DO notarize documents, and not just signatures

Amongst the members of the notary community, there are many who insist that we "notarize signatures, not documents". This is both true and false.

First and formost, the Florida Statutes do mention the notarization of documents, in addition to the notarization of signature. F.S. 117.05(3) requires that an official seal be affixed to all "notarized paper documents". Section 117.03 states:

A notary public may administer an oath and make a certificate thereof when
it is necessary for the execution of any writing or document to be published
under the seal of a notary public. [Emphasis supplied]

It is not the signature that is "published under notarial seal" - it is the execution of the writing or document. This is particularly true with affidavits. The typical affidavit begins with the wording "Before me, the undersigned authority, personally appeared John Doe ...". The affidavit is usually written in the first person as if the notary is speaking. The entire document is, in itself, the certificate of a notary stating that certain facts were sworn to in his presence. An affidavit without the oath administered by the notary is meaningless; therefore, the notary's role in the execution of an affidavit is much more important than the mere witnessing of a signature.

In addition, pursuant to section 117.04, Florida Statutes, notaries are authorized to "take the acknowledgments of deeds and other instruments of writing for record". It is not only the signature itself that is acknowledged, it is the entire document which is acknowledged. This explains why our statutory form of acknowledgment states, "The foregoing instrument was acknowledged before me", rather than "The foregoing signature was acknowledged before me".

To conclude, the next time you hear someone refer to "notarizing a document", get off the high horse for a second. We actually notarize documents more than we notarize signatures.

What is a Florida Civil-Law Notary?

A Florida civil-law notary, also known as a Florida International Notary, is an officer appointed by the Department of State, rather than the governor, who holds the powers traditionally delegated to notaries in civil-law countries. Although under Florida law, civil-law notaries have all of the same powers and duties as notaries public, they also have much broader and less-regulated authority.

Civil-law notaries must be members of the Florida Bar (for at least 5 years) who practice international law. What makes civil-law notaries so different from regular notaries public is that they are responsible for the entire content of the document. Typically, the documents that civil-law notaries involve themselves in are contracts and other business transaction documents. Whereas a regular notary would simply add an acknowledgment to the end of the document, whereby the signers of the document acknowledge having signed the document willingly, a civil-law notary certifies the actual contents of the document. A civil-law notary can therefore make determinations as to alleged status or capacity. These determinations are found at the end of the document in what are referred to as "notarial acts".

Documents authenticated by a civil-law notary are kept by the notary in what is called a "protocol", which is similar to a notarial journal except that all original documents are kept. The civil-law notary therefore issues certified copies of the document which has the same fource and effect as the original. Original documents are kept by the civil-law notary as long as he holds such position, and upon that notary's death or revocation of his commission, another civil-law notary must inherit the protocol with all of the original documents.

The concept of a civil-law notary is somewhat foreign in the State of Florida, which is a common-law state. The only state in the union which practices civil-law is Louisiana, whose notaries are similary required to be trained in the drafting of documents and mediation between parties to a transaction. Civil-law notaries have general authority to certify an entire transaction as their personal knowledge.