When is a notary liable for a professional error?

Introduction

In 2017 a private investor sold his fifty per cent interest in a real-estate limited partnership (CV) and stipulated a profit right: ten per cent of the sale proceeds above fourteen million euros, should the property be sold to a third party within a few years. The civil-law notaries who drew up the deed of transfer framed that profit right as an entitlement upon a sale of "the entire company assets". When one of the two properties was sold for over thirty million euros, the buyers refused to pay out: the entire assets, after all, had not been sold. The investor reached a settlement of six hundred thousand euros, missed out on more than a million euros by his own account, and brought a claim against the notaries. By that stage the chamber for the notariat had already called the clause "legally downright deficient". Even so, the civil proceedings ran an uneasy course: the District Court allowed the claim, the Court of Appeal dismissed it, and only the Supreme Court brought resolution in February 2026 with ECLI:NL:HR:2026:225.

This case illustrates what is at the heart of the professional liability of the civil-law notary. The notary is not merely an executor who gets signatures put on paper. He drafts binding documents, informs the parties and safeguards legal certainty. If something goes wrong in the process, the loss can be substantial and the liability question complex. Drawing on a series of recent decisions, this contribution maps out which standard the court applies, how far the notary's duty of care extends, where that duty of care founders in practice, and why a disciplinary rap on the knuckles does not yet amount to civil liability.

The standard: what a reasonably competent and reasonably acting notary must do

The underlying norm is consistently the same across the analysed decisions. A notary must exercise the care that may be expected of a reasonably competent and reasonably acting professional in comparable circumstances. That norm flows from the contract for services (Section 7:401 DCC) and takes on its own colouring for the notary through his statutory position. The District Court of the Northern Netherlands anchored that position in the Groningen share transaction expressly in Section 17 of the Dutch Notaries Act (Wna): the notary exercises his office in independence and serves the interests of all parties involved in the legal act in an impartial manner and with the greatest possible care.

From that general norm the case law then derives a number of concrete obligations. In the Groningen case the District Court set them out: impartiality, the duty to verify intent and, in certain circumstances, a duty to warn of particular risks. On top of that, the notary bears the obligation to ensure that the deed produces the legal effects intended by the parties. The District Court of Gelderland formulated the standard in the Gelderland rescue operation in comparable terms and tied the duty to inform and to verify intent directly to Section 43(1) Wna: the notary gives the parties timely opportunity to take note of the deed, communicates its substantive content and explains it, and checks whether the intent of the person concerned corresponds with the content of the deed.

The standard is therefore not abstract. It concerns a composite of sub-duties, the reach of which is determined case by case by the circumstances. Those same sub-duties also determine where liability arises in practice.

Informing and verifying intent: the core of the notary's duty of care

The most common breach in the analysed decisions lies with the duty to inform and to verify intent. The Gelderland rescue operation shows this sharply. A holding company had undertaken to invest two million euros in an ailing enterprise, of which five hundred thousand euros immediately and the remainder only over the course of the following year. In the notarial deed of issue, drawn up in English, it was stated, however, that the remaining part had to be paid by 1 January of that following year at the latest. That payment obligation had been included only in the final version of the deed, was made available on the day of execution and had to be approved within a matter of minutes. The investor opened the deed at 09:26 and accepted it at 09:30.

The District Court held that the notary had breached his duty of care. He should at least have informed the interested party of the payment obligation being entered into with the deed, precisely because the deed had been substantially amended on several occasions, the obligation was new, and the notary had never spoken personally with the investor about his intent and purpose. That the deed was drawn up in a foreign language and that there was barely any time to take note of it weighed in the balance. The defence that the notary "merely facilitated the legal recording" and had no advisory role was rejected by the District Court: even then, a carefully acting notary is bound to satisfy himself whether the party is aware of and agrees with the content of the deed.

The same duty to satisfy oneself is at play in the profit-right case that the Supreme Court dealt with in 2026. The complaint against the notaries there was that they had insufficiently satisfied themselves that the profit right as formulated was in fact intended and understood by the seller, before they executed the deed using his power of attorney. In that case the Court of Appeal had proceeded on the assumption, arguendo, of a breach of the duty of care. In both decisions the same idea is therefore central: the notary must not only draw up a legally watertight text, but also check whether that text corresponds with what the party truly intends and has understood.

Where the duty of care finds its limit: personal responsibility and expert assistance

The duty of care is broad, but not boundless. In the analysed decisions it finds its limit where the notary has good grounds to trust that the interested party had already informed himself or had beforehand sufficient insight into the consequences of the deed. Whether that limit has been reached depends heavily on the question whether the party was assisted by an expert adviser.

The Groningen share transaction shows one side of that line. A company complained that the notary had taken a partisan stance, had not warned it of the adverse consequences of the transaction and had not verified the meeting of intent. The District Court dismissed the claim. The draft deeds had each time been shared with the lawyer of the complaining party, who assisted it throughout the entire negotiation process. The notary was merely giving effect to agreements that the parties, assisted by their own lawyers, had already concluded. In those circumstances he was entitled to trust that the interested party had been sufficiently informed, and it escaped the District Court why any further-reaching duty to warn would rest on him.

The Gelderland rescue operation marks the other side. There too the matter concerned an experienced investor, and there too the notary argued that the party was a professional. That was to no avail. Unlike in the Groningen case, the notary had never spoken directly with the investor, had consulted only with other parties involved about the purpose of the operation, and the decisive payment obligation had been included in the deed only at the last moment. That the investor had experience in making investments did not release the notary from the duty to satisfy himself that this investor knew and intended the content of the deed. The difference between the two decisions therefore lies not in the professionalism of the client, but in the question whether the notary could reasonably assume that the party had already been sufficiently informed.

The duty of care that extends to third parties: the Novitaris line

Unlike with many other professionals, the notary's duty of care can also extend to persons who are not party to the deed. That is the core of the so-called Novitaris line. The Amsterdam Court of Appeal summarised that standard in the auction case. The notary's function in legal transactions obliges him, in particular circumstances, to a certain care for the interests of third parties who may be involved in the official act required of him. That care may entail that the notary has good grounds, within the meaning of Section 21(2) Wna, to refuse or suspend his service. If he provides the service nonetheless, that may entail his civil-law liability towards the third party involved.

In the auction case itself the reliance on that duty of care failed. A mortgagor complained that the auction notary had continued preparing an execution auction while a private sale was said to have already been agreed. The Court of Appeal held that the notary had not breached the duty of care: the mortgagor was in default, the bank was in principle entitled to enforce, and the notary was entitled to assume that the bank was not abusing its power. In the given circumstances his duty of care did not go so far that he had to carry out further investigation into that abuse of his own accord.

How that duty of care towards third parties is bounded emerges sharply in the case concerning the donor children, which the Amsterdam Court of Appeal dealt with in its disciplinary capacity. A notary had executed deeds relating to a dwelling from an estate. Later, donor children of the deceased came forward as creditors. The Court of Appeal held that the Novitaris criteria did not apply to these third parties, who at that time were still wholly unknown. At the time of execution there were only newspaper reports of accusations; there was no concrete, identifiable claim and no attachment from which an entitlement appeared. The duty of care towards third parties therefore presupposes that the interests of those third parties are identifiable to the notary. A stretching of it to wholly unknown, possible interested parties would, as the decision suggests, lead to an unworkable practice.

What goes wrong in practice when drafting deeds

Striking in the analysed decisions is how often the fault lies in the wording of a single provision. In the profit-right case it was the phrase "the entire company assets". A sale by a CV of its entire company assets is a scarcely conceivable figure, and it was precisely that term that gave the buyers an argument not to pay out when only one property was sold. The chamber for the notariat called the drafting downright deficient. A single, ill-considered term thus determined whether the seller could claim more than a million euros.

In the Gelderland rescue operation the defect lay not so much in the wording as in the process around it. The content of the deed had been substantially amended between two drafts, whereby a loan on terms yet to be determined turned into a hard payment obligation on a fixed date. That amendment was not discussed with the investor and surfaced only in the final version. Drafting a deed is therefore not finished with a legally correct text; the changes between versions and the communication about them also fall within the notary's care.

Both cases show that in practice the line between a ministerial core task and advice is thin. The notary who formulates a provision makes choices with material consequences for the parties. As soon as those choices depart from what a party had in mind, or leave unclear what is intended, the duty of care comes into view. In the analysed decisions the defence that the notary "only recorded what the parties wanted" does not then help him, unless it is established that the party had been fully informed by its own expert adviser.

From breach of duty of care to damages: causation and the burden of assertion

A breached duty of care does not automatically lead to liability. There must also be a causal link between the breach and the loss, and it is precisely on that point that proceedings come unstuck. The profit-right case turns entirely on it. The Court of Appeal had assumed, arguendo, that the notaries had breached their duty of care, but dismissed the claim because in the Court's view the seller had insufficiently asserted that he would not have suffered the loss but for that breach. He was required to set out, with reasons, the scenario that would have unfolded had the notaries acted impeccably.

The Supreme Court corrected that ruling. The Court of Appeal had set the requirements for the burden of assertion too high, or at any rate had left relevant assertions out of account. For the question whether the agreement with the buyers as advocated by the seller would have come about, significance attached not only to the buyers' intent, but also to the will and purpose of the seller himself. The Court of Appeal ought to have involved that argument in its assessment. The case was referred to a different Court of Appeal for fresh consideration. The decision thereby confirms that the debate over causation must not be flattened into the question of what the counterparty wanted.

Of interest is that the allocation of the burden of assertion around causation diverges in the analysed decisions. In the profit-right case the burden of asserting that the loss would not have occurred but for the breach lay with the injured party. In the Gelderland rescue operation the District Court held, by contrast, that the burden of assertion and proof as to the absence of causation rested on the notary; because the notary had not asserted, with reasons, why the investor would have signed even with proper information, causation was established. That difference is bound up with the nature of the complaint and the way the parties' debate was conducted, and it shows that the allocation of the burden of proof in the case of professional errors by the notary is not a fixed given.

Disciplinary law and civil liability: two different tests

A recurring misconception is that a well-founded disciplinary complaint establishes the civil liability of the notary. The analysed decisions contradict that. Disciplinary law, exercised by the chamber for the notariat and on appeal by the Amsterdam Court of Appeal, tests the notary's conduct against the disciplinary norm and can lead to measures such as a warning or a reprimand. The civil court assesses something else: whether the notary has acted unlawfully towards a specific party or is imputably in breach, and whether loss has flowed from that.

The profit-right case makes the difference tangible. The chamber for the notariat had declared well-founded the complaint about the deficient profit-right clause against one of the notaries and imposed a warning on him. Yet the civil outcome was not thereby a given: the District Court allowed the claim, the Court of Appeal dismissed it on the point of causation, and the Supreme Court had to be brought in. A disciplinary complaint about the drafting of a clause therefore does not translate without more into a successful claim for damages, because the civil test imposes additional requirements as to, among other things, causation and loss.

The case concerning the donor children shows the reverse movement. Those proceedings played out entirely within disciplinary law and ended with a reprimand, solely for the breached part concerning the duty to investigate. The complaint part concerning the duty of care towards the donor children as third parties was declared unfounded. Anyone who inferred from that reprimand that the notary is also civilly liable towards the estate or the donor children draws a conclusion that the decision does not support. Disciplinary well-foundedness and civil liability are separate questions, with their own standards and their own consequences.

Where the loss is recovered: the Notarial Disputes Committee or the court

Alongside the disciplinary tribunal and the civil court, there is a third, low-threshold route for recovering loss caused by a notary: the Notarial Disputes Committee (Geschillencommissie Notariaat). The scheme covers the entire profession. It rests on the KNB Complaints and Disputes Regulation, adopted under Section 55(2) of the Notaries Act, and applies to the notary's services regardless of whether he has incorporated it into his general terms of service. The committee handles complaints about the notary’s services, fee disputes and claims for damages up to an amount of €10,000.

How the committee decides depends on the client. For consumers the Geschillencommissie Notariaat rules by binding advice (bindend advies), provided the consumer is willing to deposit the disputed amount; where that deposit is not made, the committee decides by arbitral award. For business clients the Geschillencommissie Notariaat Zakelijk decides by arbitration. In both cases the decision binds both the client and the notary. The starting point remains that the parties first attempt to resolve the dispute between themselves; only where that fails is the committee available.

The €10,000 figure marks the boundary. A claim for damages exceeding that amount falls outside the scheme, unless the injured party expressly limits the claim to €10,000. Anyone seeking to recover the full loss is therefore referred to the ordinary civil route before the district court, with the requirements as to unlawfulness or attributable breach, causation and loss discussed above.

The choice of forum has consequences. A binding advice can afterwards be set aside only to a limited extent: the court will do so only where being bound by it would be unacceptable by standards of reasonableness and fairness (Section 7:904 DCC). Anyone seeking to recover the full, higher loss therefore weighs the civil route from the outset. The Complaints and Disputes Regulation was modernised in July 2026; the €10,000 maximum derives from the Rules of the Notarial Disputes Committee.

What does this mean for the notary, the client and the injured third party?

For the notary, the emphasis in the analysed decisions lies on recording the information provided. The cases the notary lost, or which must be reconsidered after cassation, are characterised by the absence of direct contact with the party, by deeds substantially amended at the last moment, and by the failure to carry out a verifiable check of intent. A reliance on the mere role of "recorder" then offers little protection, certainly not where a party had no expert adviser of its own. Where a party was in fact assisted by a lawyer and the drafts were consistently shared, the outcome for the notary turned out favourable. The distinction between those situations is the most useful anchor for practice.

For the client, the position is that the notary has a real duty of care, but that this duty of care does not replace one's own responsibility. Anyone who is assisted by an expert adviser can expect a less far-reaching warning from the notary than someone who stands alone. At the same time, the case law shows that even an experienced, professional party retains a right to sound information about what it truly enters into with a deed, and that a deed in a foreign language under time pressure requires extra attention from the notary in that respect.

For the injured third party the message is twofold. The Novitaris line offers an independent basis on which to hold a notary to account, even without a contractual bond, but only where the interests of that third party were identifiable to the notary and there were good grounds for refusal or suspension. Merely possible, still unknown claims do not suffice. And anyone who wants the loss compensated must, in the analysed decisions, above all establish causation firmly: set out, with reasons, which scenario would have unfolded but for the error. On that point claims fail just as often as on the question whether the duty of care was breached at all.

Can a client recover loss from the notary through the Disputes Committee?

Yes, up to an amount of €10,000. The Geschillencommissie Notariaat handles claims for damages and fee disputes and decides by binding advice for consumers who deposit the disputed amount, and by arbitration in the remaining cases and for business clients. The decision binds both parties. Loss above €10,000 falls outside it, unless the claim is expressly limited to that amount; otherwise the ordinary civil route before the district court remains.

Cited case law

Supreme Court

• ECLI:NL:HR:2015:831 (3 April 2015, Novitaris; basis for the duty of care towards third parties, cited in the auction case)
• ECLI:NL:HR:2022:615 (22 April 2022, duty of care regarding the percentage of transfer tax, disposed of under Section 81 of the Judiciary (Organisation) Act (RO))
• ECLI:NL:HR:2026:225 (13 February 2026, duty of care in drafting a profit-right provision; burden of assertion as to causation)

Courts of Appeal and District Courts

• ECLI:NL:GHAMS:2019:2885 (Amsterdam Court of Appeal, 6 August 2019, auction notary, duty of care towards third parties, Sections 17 and 21 Wna)
• ECLI:NL:GHAMS:2023:2327 (Amsterdam Court of Appeal, 10 October 2023, disciplinary case, duty to investigate and Novitaris criteria, reprimand)
• ECLI:NL:RBNNE:2024:4976 (District Court of the Northern Netherlands, 11 December 2024, share transaction, the limit of the duty of care where expert assistance is present)
• ECLI:NL:RBGEL:2024:9208 (District Court of Gelderland, 8 January 2025, share issue, duty to inform and to verify intent, professional error)

Juriaan de Vries is a lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

See also

• Conclusive evidential force: what does a deed prove? The text of the deed governs, and an oral explanation at signing provides no conclusive evidence.
• Professional liability: the standard and the defence
• Six days is too short: the notary's duty of care in transferring a dwelling from an estate