4.1 Authentic Acts

Authentic Acts in Louisiana

The authentic act is the signature notarial instrument of Louisiana civil law, and the Louisiana notary exam tests it heavily. Unlike a common-law acknowledgment that merely proves a signature, an authentic act is a self-proving writing that carries full evidentiary weight the moment it is executed.

Definition (Civil Code Article 1833)

Civil Code (CC) Article 1833 defines an authentic act as a writing executed before a notary public (or other authorized officer), in the presence of two witnesses, and signed by each party who executed it, by each witness, and by the notary before whom it was executed. To be authentic, every one of those signatures must appear and must be made in the notary's presence. Miss one element and the instrument is not authentic.

The Three-Signature Rule

A helpful memory hook: an authentic act always carries a minimum of four signatures for a one-party act (party + two witnesses + notary).

Witness Qualifications

Under CC Article 1839 and R.S. 35:511, witnesses to an authentic act must be at least 16 years old (note: this differs from the 18-year requirement many candidates assume) and of sound mind. A witness may not be a party to the act, because a party cannot attest to their own signature. The notary cannot serve as one of the two witnesses — this is among the most frequently tested traps on the exam. Relatives are not statutorily barred, but using a beneficiary as a witness is poor practice.

Evidentiary Effect (CC Article 1835)

CC Article 1835 gives the authentic act full proof of the agreement it contains, against the parties, their heirs, and successors, and it serves as proof against third persons of the fact that the act took place and of its date. Practically, this means:

• It is self-proving — no witness must be hauled into court to authenticate it.
• It is presumed genuine until attacked in a direct action (such as an action of forgery or fraud), not merely denied.
• Its recitals of fact made by the parties stand as prima facie proof.

The Savings Rule (CC Article 1834)

If an act fails as authentic — say only one witness signed — CC Article 1834 allows it to survive as an act under private signature duly acknowledged, provided the party signatures are genuine. It loses self-proving status but is not automatically void. Exam questions love to contrast "invalid authentic act" with "still good as a private writing."

When Authentic Form Is Practically Required

For many transactions, a private writing is valid between the parties but cannot be recorded in the parish conveyance or mortgage records — and recordation is what binds third persons under Louisiana's public-records doctrine. Authentic form (or a duly acknowledged private act) is therefore the practical standard.

Execution Procedure

1. Identify each party with valid government photo ID; confirm capacity and willingness.
2. Confirm two qualified witnesses are physically present.
3. Parties sign in the presence of the notary and both witnesses.
4. Witnesses sign, then the notary signs and applies the seal, parish, and date.
5. The notary completes the certificate naming the parish where the act was passed.

Worked Scenario

A seller signs a cash sale of a New Orleans home before a notary with one witness present; the second "witness" signs the next morning after the seller has left. Result: not an authentic act (signatures not all in the notary's presence), and likely not recordable. Under CC Art. 1834 the deed may still bind the parties as a private writing once acknowledged, but title insurers will refuse it.

Authentic Act vs. Act Under Private Signature

Candidates must contrast the authentic act with its lesser cousin, the act under private signature (a writing the parties make without a notary). The authentic act proves itself; the private writing must be authenticated before it carries weight, usually by the parties acknowledging their signatures before a notary or by handwriting proof in court. The authentic act binds third persons as to its date; a private writing acquires a certain date against third persons only upon recordation, the death of a signer, or other events fixing the date.

On the exam, if a stem describes a writing with a notary and two witnesses and all required signatures, it is authentic; strip away the second witness or the notary's signature and it drops to private status.

Jurisdiction and the Seal

A Louisiana notary executes authentic acts within the territory authorized by the commission — historically the parish of commission and abutting parishes under reciprocity, and statewide for a notary qualified statewide. Acting outside that territory undermines the act. The notary completes every authentic act with the parish where the act is passed, the date, the notary's signature, and seal or stamp bearing the notary identification number. Omitting the parish or date is a defect graders test, because the date is part of what makes the act full proof against third persons.

Common Traps

• Confusing the 16-year witness floor with 18.
• Letting the notary double as a witness.
• Assuming an immovable sale is void without authentic form (it is valid between parties, just not recordable) — donation of an immovable is the true "void without authentic act" case.
• Forgetting that an authentic act must state the parish where it was passed and bear the notary's seal and identification number.