This document outlines specific scenarios that were used by the eNotarization TC during the development of its XML schema. The Use Cases described were selected based on their ubiquity and commonality in actual use today. It is anticipated that additional use cases will be added at future dates that will expand the scope of the standard.
This document was last revised or approved by the LegalXML eNotarization TC on the above date. The level of approval is also listed above. Check the “Latest Version” or “Latest Approved Version” location noted above for possible later revisions of this document.
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In order to facilitate the adoption of notarized electronic documents, it is desirable to develop data standards for electronic notarizations that can be applied across a wide variety of applications. It is the goal of this document to identify several common notarial acts that are utilized in a variety of vertical markets as a starting point for detailed analysis of data points and nomenclature that can be codified in an XML vocabulary which can then be adopted by a wide range of industries.
The key words “MUST”, “MUST NOT”, “REQUIRED”, “SHALL”, “SHALL NOT”, “SHOULD”, “SHOULD NOT”, “RECOMMENDED”, “MAY”, and “OPTIONAL” in this document are to be interpreted as described in [RFC2119].
During the signature event the signer binds their signature to the document content. The notary binds the signer's signature to the signer's identity through the certificate content which additionally establishes voluntariness. The notary's signature binds the certificate content to the notary's identity and wraps the entire set of document content values and bindings of signatures to identities in a tamper-evident mechanism. The notary seal (or seal information under UETA) binds the notary to the power of the commissioning state.
Acknowledgments contain two essential elements. The first element is a formal declaration made by a person who signed a document indicating that the signature is genuine and that signing the document was a free will act performed for the purposes indicated in the document. This declaration is made in the presence of a notary.
It should be noted that the signing may be executed prior to appearing before the notary. The notary is taking the singer's acknowledgment that he or she did, in fact, sign the document willingly and knowingly.
The second element is the notary's certificate; a written statement that the signer did appear in person, was satisfactorily identified and made the acknowledgment. This notarial act is authorized in and follows a similar process in each of the 50 states and the District of Columbia.
An electronic document has been generated by the parties or their agent. Included in the document preparation would be appropriate acknowledgment certificate language. The party(ies) sign the document and appear before a notary public.
Signers have provided acceptable identification documents, have acknowledged that they signed a document with full understanding of the purpose of the document, indicated their intent to execute the document (and thus be bound by its terms and conditions.) The document has been electronically signed by the part(ies) acknowledging their signatures. The notary public has completed the notary certificate and affixed his or her electronic signature to the document. In states that require an electronic notarial seal, this would also be affixed to the document.
Requirements for Effective Acknowledgment:
Issues Related to Use Case:
An affidavit is a voluntary written statement of fact, sworn to or affirmed by the person making it before a notary (or other person authorized by law to administer oaths and affirmations) and officially certified by the notary under his or her seal of office.
An affidavit is valid only when signed in the presence of the notary who administers an oath or affirmation. The affiant must swear to the statement contained in the affidavit, and the fact of his or her swearing or affirming must be certified by the notary.
An electronic affidavit has been generated by the parties or their agent. Included in the document preparation would be appropriate oath or affirmation language.
The notary and affiant must be present together for the oath or affirmation. It is not necessary that the oath or affirmation administered be formal, nor is it necessary that any exact words or specific ceremony be used to constitute a valid administration of an oath or affirmation. There must be concurrent action on the part of the affiant and the notary by which the affiant consciously, solemnly takes upon him or herself to be bound by the obligation of an oath or affirmation.
An affidavit must contain a statement of facts based on the personal knowledge of the affiant. An affidavit must also contain a statement indicating that the person who made it was under oath or affirmation.
Signers have provided acceptable identification documents and have sworn to the statement contained in the affidavit. The document has been electronically signed by the part(ies) thusly swearing. The notary public has completed a jurat and affixed his or her electronic signature to the document. In states that require an electronic notarial seal, this would also be affixed to the document.
Generally, an affidavit must be signed by the affiant, in order to constitute a formal affidavit. (However, courts have ruled an affidavit valid which was not signed by the affiant, but in which appeared the name of the affiant indicating the person who took an oath or made an affirmation.) The affiant’s signature need not be at the end, if it appears in any part and is obviously applicable to the affidavit.
A jurat is generally defined as a certificate added to an affidavit stating when, before whom, and where an oath was taken or affirmation made. A jurat certifies the administration of an oath or affirmation associated with an affidavit, but it is not a required part of an affidavit. The jurat provides one type of evidence that an affidavit was sworn to or affirmed properly, that is, in the presence of someone authorized to administer oaths and affirmations.
Requirements for Effective Affidavits:
Issues Related to Use Case:
In this scenario a trusted person identifies another individual to a computer network which issues a credential to the second individual based upon criteria on behalf of an actual or potential relying party. The second individual then logs on to the computer network. All activities performed while logged-in are presumed to be the actions of the second individual.
The system recognizes the trusted person. The individual requesting access has presented to the trusted person identity credentials that satisfy relying party requirements. The system being accessed has sufficient capacity to record the identity of the individual, issue the credential, logically associate the two, and securely store the information. The individual is “in the presence” of the trusted person when initially requesting the identity credentials.
The identity of the individual has been authenticated and a credential issued. The relationship between identity and issued credentials has been recorded and stored, such that actions taken on the basis of the credential are presumed to be those of the individual.
Requirements for Effective Personal Credentialing for System Access:
Issues Related to Use Case:
A signer of a document declares that the signature is executed under penalty of perjury. No other individual is involved.
Document must declare that it is signed under penalty of perjury.
Document was signed, dated and include a statement regarding location of declaration by the declarant.
Requirements for an effective Unsworn Declaration:
Issues Related to Use Case:
An apostille is the certificate of an authorized government officer who has verified the signature and seal/stamp of a notary public or other public signatory. An apostille certifies the authenticity of the signature, the capacity in which the person signing the document has acted, and when appropriate, the identity of the seal or stamp which the document bears. An apostille does not, however, authenticate or verify the content of the public document to which it is attached.
A document has been officially witnessed by a notary public or other public signatory in another jurisdiction (usually a foreign country). The regulatory body with oversight of notaries public or other public signatories in that jurisdiction verifies the notary or other public signatory was properly commissioned at the time of the event, and the signature and seal that appear on the document are those of the official witness.
If the officer determines that the commission, signature, and seal on the document match those on file, then the officer attaches a certificate, conforming to Article Four of Convention 12 of The Hague Conference on Private International Law, to the document. A registry entry regarding each Apostille issued is also required to be maintained by the issuing agency according to The Hague rules.
Requirements for Effective Apostille:
Issues Related to Use Case:
The following individuals have participated in the creation of this specification and are gratefully acknowledged:
Rolly Chambers, Taylor, Penry, Rash, Riemann, PLLC
Mark Ladd, Property Records Industry Association
Marc Aronson, United States Notary Association
David Ewan, New Jersey Land Title Company
John Jones, Arion Zoe Corp
Harry Gardner, Mortgage Industry Standards Maintenance Organization
John Messing, American Bar Association