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Legforms G02 Reviewer NOTARIAL PRACTICE AND NOTARIAL LAW AND RULES
Legislative Enactments and Judicial Issuances
INTRODUCTION
IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC OF
PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL
CASTILLO.
There is a basic reason for individual judges of whatever level of courts,
including the Supreme Court, not to use original or unique language when
reinstating the laws involved in the cases they decide. Their duty is to apply
the laws as these are written. But laws include, under the doctrine of stare
decisis, judicial interpretations of such laws as are applied to specific
situations. Under this doctrine, Courts are to stand by precedent and not to
disturb settled point. Once the Court has laid down a principle of law as
applicable to a certain state of facts, it will adhere to that principle, and apply
it to all future cases, where facts are substantially the same; regardless of
whether the parties or property are the same.[6]
And because judicial precedents are not always clearly delineated, they are
quite often entangled in apparent inconsistencies or even in contradictions,
prompting experts in the law to build up regarding such matters a large body
of commentaries or annotations that, in themselves, often become part of
legal writings upon which lawyers and judges draw materials for their
theories or solutions in particular cases. And, because of the need to be
precise and correct, judges and practitioners alike, by practice and tradition,
usually lift passages from such precedents and writings, at times omitting,
without malicious intent, attributions to the originators.
Act No. 2103 – “An Act Providing for the Acknowledgement and
Authentication of Instruments and Documents Without the Philippine
Islands” enacted on January 26, 1912
SECTION 1. An instrument or document acknowledged and authenticated
in any State, Territory, the District of Columbia, or dependency of the
United States, shall be considered authentic if the acknowledgment and
authentication are made in accordance with the following requirements:
(a) The acknowledgment shall be made before a notary public or an
officer duly authorized by law of the county to take acknowledgments
of instruments or documents in the place where the act is done. The
notary public or the officer taking the acknowledgment shall certify that
the person acknowledging the instrument or document is known to
him and that he is the same person who executed it, and
acknowledged that the same is his free act and deed. The certificate
shall be made under his official seal, if he is by law required to keep a
seal, and if not, his certificate shall so state.
(b) The certificate of the notary public or the officer taking the
acknowledgment shall be authenticated by the county clerk or his
deputy, or by a clerk or deputy clerk of any court of record of the
county, municipality or judicial district wherein the acknowledgment is
taken, or by the secretary of state, executive secretary, or other
similar functionary of the state, territory, the District of Columbia, or
dependency of the United States, as the case may be. The officer
making the authentication shall certify under the seal of his office or
court that the person who took the acknowledgment was at the time
duly authorized to act as notary public or that he was duly exercising
the functions of the office by virtue of which he assumed to act, and
that as such he had authority under the law to take acknowledgment
of instruments or documents in the place where the acknowledgment
was taken, and that his signature and seal, if any, are genuine.
SECTION 2. An instrument or document acknowledged and authenticated
in a foreign country shall be considered authentic if the acknowledgment
and authentication are made in accordance with the following
requirements:
(a) The acknowledgment shall be made before (1) an ambassador,
minister, secretary of legation, chargé d'affaires, consul, vice-consul,
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or consular agent of the United States, acting within the country or
place to which he is accredited, or (2) a notary public or officer duly
authorized by law of the country to take acknowledgments of
instruments or documents in the place where the act is done.
(b) The person taking the acknowledgment shall certify that the person
acknowledging the instrument or document is known to him, and that
he is the same person who executed it, and acknowledged that the
same is his free act and deed. The certificate shall be under his official
seal, if he is by law required to keep a seal, and if not, his certificate
shall so state. In case the acknowledgment is made before a notary
public or an officer mentioned in subdivision (2) of the preceding
paragraph, the certificate of the notary public or the officer taking the
acknowledgment shall be authenticated by an ambassador, minister,
secretary of legation, chargé d'affaires, consul, vice-consul, or
consular agent of the United States, acting within the country or place
to which he is accredited. The officer making the authentication shall
certify under his official seal that the person who took the
acknowledgment was at the time duly authorized to act as notary
public or that he was duly exercising the functions of the office by
virtue of which he assumed to act, and that as such he had authority
under the law to take acknowledgment of instruments or documents in
the place where the acknowledgment was taken, and that his
signature and seal, if any, are genuine.
SECTION 3. Instruments or documents acknowledged and authenticated
in substantial conformity with the provisions of this Act before the same
takes effect shall be considered authentic.
SECTION 4. This Act shall not be construed to repeal in any way any of
the provisions contained in Chapter X, Part I, of Act Numbered One
hundred and ninety, entitled “An Act providing a code or procedure in civil
actions and special proceedings in the Philippine Islands.”
Enacted, January 26, 1912.
The Old Notarial Law – Act No. 2711 or the Revised Administrative
Code of the Philippines
SEC. 245. Notarial Register. ― Every notary public shall keep a register
to be known as the notarial register, wherein record shall be made
of all his official acts as notary; and he shall supply a certified copy of such
record, or any part thereof, to any person applying for it and paying the
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legal fees therefore. (emphasis supplied)
xxx xxx xxx
SEC. 246. Matters to be entered therein. — The notary public shall enter
in such register, in chronological order, the nature of each instrument
executed, sworn to, or acknowledged before him, the person executing,
swearing to, or acknowledging the instrument, the witnesses, if any, to the
signature, the date of execution, oath, or acknowledgment of the
instrument, the fees collected by him for his services as notary in
connection therewith, and, when the instrument is a contract, he shall
keep a correct copy thereof as part of his records, and shall likewise enter
in said records a brief description of the substance thereof and shall give
to each entry a consecutive number, beginning with number one in each
calendar year. The notary shall give to each instrument executed, sworn
to, or acknowledged before him a number corresponding to the one in his
register, and shall also state on the instrument the page or pages of his
register on which the same is recorded. No blank line shall be left
between entries.
*The Notarial Law (Chapter 11 of Act 2711) has been superseded
effective August 1, 2004 by the 2004 Rules on Notarial Practice (A.M. No.
02-8-13-SC) promulgated on July 6, 2004.
Official Oaths – Executive Order No. 292, s. 1987 – Administrative
Code of 1987, as amended by Republic Act No. 6733
Executive Order No. 292 [Book I, Chapter 10 – Official Oaths]
CHAPTER 10
Official Oaths
SECTION 40. Oaths of Office for Public Officers and Employees.—All
public officers and employees of the government including every member
of the armed forces shall, before entering upon the discharge of his duties,
take an oath or affirmation to uphold and defend the Constitution; that he
will bear true faith and allegiance to it; obey the laws, legal orders and
decrees promulgated by the duly constituted authorities; will well and
faithfully discharge to the best of his ability the duties of the office or
position upon which he is about to enter; and that he voluntarily assumes
the obligation imposed by his oath of office, without mental reservation or
purpose of evasion. Copies of the oath shall be deposited with the Civil
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Service Commission and the National Archives.
SECTION 41. Officers Authorized to Administer Oath. — The following
officers have general authority to administer oaths: President; Vice-
President; Members and Secretaries of both Houses of the Congress;
Members of the Judiciary; Secretaries of Departments; provincial
governors and lieutenant-governors; city mayors; municipal mayors;
bureau directors; regional directors; clerks of courts; registrars of deeds;
other civilian officers in the public service of the government of the
Philippines whose appointments are vested in the President and are
subject to confirmation by the Commission on Appointments; all other
constitutional officers; and notaries public. [As amended by Section 2 of
Republic Act No. 6733]
SECTION 42. Duty to Administer Oath.—Officers authorized to administer
oaths, with the exception of notaries public, municipal judges and clerks of
court, are not obliged to administer oaths or execute certificates save in
matters of official business; and with the exception of notaries public, the
officer performing the service in those matters shall charge no fee, unless
specifically authorized by law.
Presentation of Community Tax Certificate on Certain Occasions –
Sec. 163, Republic Act No. 7160, Local Government Code of 1991
SEC. 163. Presentation of Community Tax Certificate On Certain
Occasions. –
(a) When an individual subject to the community tax acknowledges any
document before a notary public, takes the oath of office upon election or
appointment to any position in the government service; receives any
license, certificate, or permit from any public authority; pays any tax or fee;
receives any money from any public fund; transacts other official business;
or receives any salary or wage from any person or corporation, it shall be
the duty of any person, officer, or corporation with whom such transaction
is made or business done or from whom any salary or wage is received to
require such individual to exhibit the community tax certificate. The
presentation of community tax certificate shall not be required in
connection with the registration of a voter.
(b) When, through its authorized officers, any corporation subject to the
community tax receives any license, certificate, or permit from any public
authority, pays any tax or fee, receives money from public funds, or
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transacts other official business, it shall be the duty of the public official
with whom such transaction is made or business done, to require such
corporation to exhibit the community tax certificates
(c) The community tax certificate required in the two preceding paragraphs
shall be the one issued for the current year, except for the period from
January until the fifteenth (15th) of April each year, in which case, the
certificate issued for the preceding year shall suffice.
Effect of Failure to Stamp Taxable Document –Title VII [Documentary
Stamp Tax] of Republic Act No. 8424 or the Tax Reform Act of 1997
Section 201. Effect of Failure to Stamp Taxable Document. – An
instrument, document or paper which is required by law to be stamped and
which has been signed, issued, accepted or transferred without being duly
stamped, shall not be recorded, nor shall it or any copy thereof or any
record of transfer of the same be admitted or used in evidence in any court
until the requisite stamp or stamps are affixed thereto and cancelled.
2004 Rules on Notarial Practice – A.M. No. 02-8-13-SC, SC En Banc
Resolution dated July 6, 2004
RULE I
IMPLEMENTATION
SECTION 1. Title. – These Rules shall be known as the 2004 Rules on
Notarial Practice.
SEC. 2. Purposes. – These Rules shall be applied and construed to
advance the following purposes:
(a) to promote, serve, and protect public interest;
(b) to simplify, clarify, and modernize the rules governing notaries public;
and
(c) to foster ethical conduct among notaries public.
SEC. 3. Interpretation. – Unless the context of these Rules otherwise
indicates, words in the singular include the plural, and words in the plural
include the singular.
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RULE II
DEFINITIONS
SECTION 1. Acknowledgment. – “Acknowledgment” refers to an act in
which an individual on a single occasion:
(a) appears in person before the notary public and presents an integrally
complete instrument or document;
(b) is attested to be personally known to the notary public or identified by
the notary public through competent evidence of identity as defined by
these Rules; and
(c) represents to the notary public that the signature on the instrument or
document was voluntarily affixed by him for the purposes stated in the
instrument or document, declares that he has executed the instrument
or document as his free and voluntary act and deed, and, if he acts in
a particular representative capacity, that he has the authority to sign in
that capacity.
SEC. 2. Affirmation or Oath. – The term “Affirmation” or “Oath” refers to an
act in which an individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by these
Rules; and
(c) avows under penalty of law to the whole truth of the contents of the
instrument or document.
SEC. 3. Commission. – “Commission” refers to the grant of authority to
perform notarial acts and to the written evidence of the authority.
SEC. 4. Copy Certification. – “Copy Certification” refers to a notarial act in
which a notary public:
(a) is presented with an instrument or document that is neither a vital
record, a public record, nor publicly recordable;
(b) copies or supervises the copying of the instrument or document;
(c) compares the instrument or document with the copy; and
(d) determines that the copy is accurate and complete.
SEC. 5. Notarial Register. – “Notarial Register” refers to a permanently
bound book with numbered pages containing a chronological record of
notarial acts performed by a notary public.
SEC. 6. Jurat. – “Jurat” refers to an act in which an individual on a single
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occasion:
(a) appears in person before the notary public and presents an instrument
or document;
(b) is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by these
Rules;
(c) signs the instrument or document in the presence of the notary; and
(d) takes an oath or affirmation before the notary public as to such
instrument or document.
SEC. 7. Notarial Act and Notarization. – “Notarial Act” and “Notarization”
refer to any act that a notary public is empowered to perform under these
Rules.
SEC. 8. Notarial Certificate. – “Notarial Certificate” refers to the part of, or
attachment to, a notarized instrument or document that is completed by
the notary public, bears the notary’s signature and seal, and states the
facts attested to by the notary public in a particular notarization as
provided for by these Rules.
SEC. 9. Notary Public and Notaty. – “Notary Public” and “Notary” refer to
any person commissioned to perform official acts under these Rules.
SEC. 10. Principal. – “Principal” refers to a person appearing before the
notary public whose act is the subject of notarization.
SEC. 11. Regular Place of Work or Business. – The term “regular place of
work or business” refers to a stationary office in the city or province
wherein the notary public renders legal and notarial services.
SEC. 12. Competent Evidence of Identity. – The phrase “competent
evidence of identity” refers to the identification of an individual based on:
(a) at least one current identification document issued by an official
agency bearing the photograph and signature of the individual; or
(b) the oath or affirmation of one credible witness not privy to the
instrument, document or transaction who is personally known to the
notary public and who personally knows the individual, or of two
credible witnesses neither of whom is privy to the instrument,
document or transaction who each personally knows the individual and
shows to the notary public documentary identification.
SEC. 13. Official Seal or Seal. – “Official seal” or “Seal” refers to a device
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for affixing a mark, image or impression on all papers officially signed by
the notary public conforming the requisites prescribed by these Rules.
SEC. 14. Signature Witnessing. -The term “signature witnessing” refers to
a notarial act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument
or document;
(b) is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by these
Rules; and
(c) signs the instrument or document in the presence of the notary public.
SEC. 15. Court. – “Court” refers to the Supreme Court of the Philippines.
SEC. 16. Petitioner. – “Petitioner” refers to a person who applies for a
notarial commission.
SEC. 17. Office of the Court Administrator. – “Office of the Court
Administrator” refers to the Office of the Court Administrator of the
Supreme Court.
SEC. 18. Executive Judge. – “Executive Judge” refers to the Executive
Judge of the Regional Trial Court of a city or province who issues a
notarial commission.
SEC. 19. Vendor – “Vendor” under these Rules refers to a seller of a
notarial seal and shall include a wholesaler or retailer.
SEC. 20. Manufacturer. – “Manufacturer” under these Rules refers to one
who produces a notarial seal and shall include an engraver and seal
maker.
RULE III
COMMISSIONING OF NOTARY PUBLIC
SECTION 1. Qualifications. – A notarial commission may be issued by an
Executive Judge to any qualified person who submits a petition in
accordance with these Rules.
To be eligible for commissioning as notary public, the petitioner:
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(1) must be a citizen of the Philippines;
(2) must be over twenty-one (21) years of age;
(3) must be a resident in the Philippines for at least one (1) year and
maintains a regular place of work or business in the city or province
where the commission is to be issued;
(4) must be a member of the Philippine Bar in good standing with
clearances from the Office of the Bar Confidant of the Supreme Court
and the Integrated Bar of the Philippines; and
(5) must not have been convicted in the first instance of any crime
involving moral turpitude.
SEC. 2. Form of the Petition and Supporting Documents. – Every petition
for a notarial commission shall be in writing, verified, and shall include the
following:
(a) a statement containing the petitioner’s personal qualifications,
including the petitioner’s date of birth, residence, telephone number,
professional tax receipt, roll of attorney’s number and IBP membership
number; ,
(b) certification of good moral character of the petitioner by at least two (2)
executive officers of the local chapter of the Integrated Bar of the
Philippines where he is applying for commission;
(c) proof of payment for the filing of the petition as required by these
Rules; and
(d) three (3) passport-size color photographs with light background taken
within thirty (30) days of the application. The photograph should not be
retouched. The petitioner shall sign his name at the bottom part of the
photographs.
SEC. 3. Application Fee. – Every petitioner for a notarial commission shall
pay the application fee as prescribed in the Rules of Court.
SEC. 4. Summary Hearing on the Petition. – The Executive Judge shall
conduct a summary hearing on the petition and shall grant the same if:
(a) the petition is sufficient in form and substance;
(b) the petitioner proves the allegations contained in the petition; and
(c) the petitioner establishes to the satisfaction of the Executive Judge
that he has read and fully understood these Rules.
The Executive Judge shall forthwith issue a commission and a Certificate
of Authorization to Purchase a Notarial Seal in favor of the petitioner.
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SEC. 5. Notice of Summary Hearing. – (a) The notice of summary hearing
shall be published in a newspaper of general circulation in the city or
province where the hearing shall be conducted and posted in a
conspicuous place in the offices of the Executive Judge and of the Clerk of
Court. The cost of the publication shall be borne by the petitioner. The
notice may include more than
one petitioner.
(b) The notice shall be substantially in the following form;
NOTICE OF HEARING
Notice is hereby given that a summary hearing on the petition for notarial
commission of (name of petitioner) shall be held on (date) at (place) at
(time). Any person who has any cause or reason to object to the grant of
the petition may file a verified written opposition thereto, received by the
undersigned before the date of the summary hearing.
______________
Executive Judge
SEC. 6. Opposition to Petition. – Any person who has any cause or reason
to object to the grant of the petition may file a verified written opposition
thereto. The opposition must be received by the Executive Judge before
the date of the summary hearing.
SEC. 7. Form of Notarial Commission. – The commissioning of a notary
public shall be in a formal order signed by the Executive Judge
substantially in the following form:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF ______________
This is to certify that (name of notary public) of (regular place of work or
business) in (city or province) was on this (date) day of (month) two
thousand and (year) commissioned by the undersigned as a notary public,
within and for the said jurisdiction, for a term ending the thirty-first day of
December (year)
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_______________
Executive Judge
SEC. 8. Period Of Validity of Certificate of Authorization to Purchase a
Notarial Seal. – The Certificate of Authorization to Purchase a Notarial
Seal shall be valid for a period of three (3) months from date of issue,
unless extended by the Executive Judge.
A mark, image or impression of the seal that may be purchased by the
notary public pursuant to the Certificate shall be presented to the
Executive Judge for approval prior to use.
SEC. 9. Form of Certificate of Authorization to Purchase a Notarial Seal. -
The Certificate of Authorization to Purchase a Notarial Seal shall
substantially be in the following form:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF_____________
CERTIFICATE OF AUTHORIZATION TO PURCHASE A NOTARIAL
SEAL
This is to authorize (name of notary public) of (city or province) who was
commissioned by the undersigned as a notary public, within and for the
said jurisdiction, for a term ending, the thirty-first of December (year) to
purchase a notarial seal.
Issued this (day) of (month) (year).
_______________
Executive Judge
SEC. 10. Official Seal of Notary Public. – Every person commissioned as
notary public shall have only one official seal of office in accordance with
these Rules.
SEC. 11. Jurisdiction and Term. – A person commissioned as notary
public may perform notarial acts in any place within the territorial
jurisdiction of the commissioning court for a period of two (2) years
commencing the first day of January of the year in which the
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commissioning is made, unless earlier revoked or the notary public has
resigned under these Rules and the Rules of Court.
SEC. 12. Register of Notaries Public. – The Executive Judge shall keep
and maintain a Register of Notaries Public in his jurisdiction which shall
contain, among others, the dates of issuance or revocation or suspension
of notarial commissions, and the resignation or death of notaries public.
The Executive Judge shall furnish the Office of the Court Administrator
information and data recorded in the register of notaries public. The Office
of the Court Administrator shall keep a permanent, complete and updated
database of such records.
SEC. 13. Renewal of Commission. – A notary public may file a written
application with the Executive Judge for the renewal of his commission
within forty-five (45) days before the expiration thereof. A mark, image or
impression of the seal of the notary public shall be attached to the
application.
Failure to file said application will result in the deletion of the name of the
notary public in the register of notaries public.
The notary public thus removed from the Register of Notaries Public may
only be reinstated therein after he is issued a new commission in
accordance with these Rules.
SEC. 14. Action on Application for Renewal of Commission. – The
Executive Judge shall, upon payment of the application fee mentioned in
Section 3 above of this Rule, act on an application for the renewal of a
commission within thirty (30) days from receipt thereof. If the application is
denied, the Executive Judge shall state the reasons therefor.
RULE IV
POWERS AND LIMITATIONS OF NOTARIES PUBLIC
SECTION 1. Powers. – (a) A notary public is empowered to perform the
following notarial acts:
(1) acknowledgments;
(2) oaths and affirmations;
(3) jurats;
(4) signature witnessings;
(5) copy certifications; and
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(6) any other act authorized by these Rules.
(b) A notary public is authorized to certify the affixing of a signature by
thumb or other mark on an instrument or document presented for
notarization if:
(1) the thumb or other mark is affixed in the presence of the notary public
and of two (2) disinterested and unaffected witnesses to the
instrument or document;
(2) both witnesses sign their own names in addition to the thumb or other
mark;
(3) the notary public writes below the thumb or other mark: “Thumb or
Other Mark affixed by (name of signatory by mark) in the presence
of (names and addresses of witnesses) and undersigned notary
public”; and
(4) the notary public notarizes the signature by thumb or other mark
through an acknowledgment, jurat, or signature witnessing.
(c) A notary public is authorized to sign on behalf of a person who is
physically unable to sign or make a mark on an instrument or document if:
(1) the notary public is directed by the person unable to sign or make a
mark to sign on his behalf;
(2) the signature of the notary public is affixed in the presence of two
disinterested and unaffected witnesses to the instrument or document;
(3) both witnesses sign their own names ;
(4) the notary public writes below his signature: “Signature affixed by
notary in presence of (names and addresses of person and
two \2] witnesses)”; and
(5) the notary public notarizes his signature by acknowledgment or jurat.
SEC. 2. Prohibitions. – (a) A notary public shall not perform a notarial act
outside his regular place of work or business; provided, however, that on
certain exceptional occasions or situations, a notarial act may be
performed at the request of the parties in the following sites located within
his territorial jurisdiction:
(1) public offices, convention halls, and similar places where oaths of
office may be administered;
(2) public function areas in hotels and similar places for the signing of
instruments or documents requiring notarization;
(3) hospitals and other medical institutions where a party to an instrument
or document is confined for treatment; and
(4) any place where a party to an instrument or document requiring
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notarization is under detention.
(b) A person shall not perform a notarial act if the person involved as
signatory to the instrument or document –
(1) is not in the notary’s presence personally at the time of the
notarization; and
(2) is not personally known to the notary public or otherwise identified by
the notary public through competent evidence of identity as defined by
these Rules.
SEC. 3. Disqualifications. – A notary public is disqualified from performing
a notarial act if he:
(a) is a party to the instrument or document that is to be notarized;
(b) will receive, as a direct or indirect result, any commission, fee,
advantage, right, title, interest, cash, property, or other consideration,
except as provided by these Rules and by law; or
(c) is a spouse, common-law partner, ancestor, descendant, or relative by
affinity or consanguinity of the principal within the fourth civil degree.
SEC. 4. Refusal to Notarize. – A notary public shall not perform any
notarial act described in these Rules for any person requesting such an
act even if he tenders the appropriate fee specified by these Rules if:
(a) the notary knows or has good reason to believe that the notarial act or
transaction is unlawful or immoral;
(b) the signatory shows a demeanor which engenders in the mind of the
notary public reasonable doubt as to the former’s knowledge of the
consequences of the transaction requiring a notarial act; and
(c) in the notary’s judgment, the signatory is not acting of his or her own
free will.
SEC. 5. False or Incomplete Certificate. – A notary public shall not:
(a) execute a certificate containing information known or believed by the
notary to be false.
(b) affix an official signature or seal on a notarial certificate that is
incomplete.
SEC. 6. Improper Instruments or Documents. – A notary public shall not
notarize:
(a) a blank or incomplete instrument or document; or
(b) an instrument or document without appropriate notarial certification.
RULE V
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FEES OF NOTARY PUBLIC
SECTION 1. Imposition and Waiver of Fees. – For performing a notarial
act, a notary public may charge the maximum fee as prescribed by the
Supreme Court unless he waives the fee in whole or in part.
SEC. 2. Travel Fees and Expenses. – A notary public may charge travel
fees and expenses separate and apart from the notarial fees prescribed in
the preceding section when traveling to perform a notarial act if the notary
public and the person requesting the notarial act agree prior to the travel.
SEC. 3. Prohibited Fees. – No fee or compensation of any kind, except
those expressly prescribed and allowed herein, shall be collected or
received for any notarial service.
SEC. 4. Payment or Refund of Fees. – A notary public shall not require
payment of any fees specified herein prior to the performance of a notarial
act unless otherwise agreed upon.
Any travel fees and expenses paid to a notary public prior to the
performance of a notarial act are not subject to refund if the notary public
had already traveled but failed to complete in whole or in part the notarial
act for reasons beyond his control and without negligence on his part.
SEC. 5. Notice of Fees. – A notary public who charges a fee for notarial
services shall issue a receipt registered with the Bureau of Internal
Revenue and keep a journal of notarial fees. He shall enter in the journal
all fees charged for services rendered.
A notary public shall post in a conspicuous place in his office a complete
schedule of chargeable notarial fees.
RULE VI
NOTARIAL REGISTER
SECTION 1. Form of Notarial Register. – (a) A notary public shall keep,
maintain, protect and provide for lawful inspection as provided in these
Rules, a chronological official notarial register of notarial acts consisting of
a permanently bound book with numbered pages.
The register shall be kept in books to be furnished by the Solicitor General
to any notary public upon request and upon payment of the cost thereof.
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The register shall be duly paged, and on the first page, the Solicitor
General shall certify the number of pages of which the book consists.
For purposes of this provision, a Memorandum of Agreement or
Understanding may be entered into by the Office of the Solicitor General
and the Office of the Court Administrator.
(b) A notary public shall keep only one active notarial register at any given
time.
SEC. 2. Entries in the Notarial Register. – (a) For every notarial act, the
notary shall record in the notarial register at the time of notarization the
following:
(1) the entry number and page number;
(2) the date and time of day of the notarial act;
(3) the type of notarial act;
(4) the title or description of the instrument, document or proceeding;
(5) the name and address of each principal;
(6) the competent evidence of identity as defined by these Rules if the
signatory is not personally known to the notary;
(7) the name and address of each credible witness swearing to or
affirming the person’s identity;
(8) the fee charged for the notarial act;
(9) the address where the notarization was performed if not in the notary’s
regular place of work or business; and
(10) any other circumstance the notary public may deem of significance or
relevance.
(b) A notary public shall record in the notarial register the reasons and
circumstances for not completing a notarial act.
(c) A notary public shall record in the notarial register the circumstances of
any request to inspect or copy an entry in the notarial register, including
the requester’s name, address, signature, thumbmark or other recognized
identifier, and evidence of identity. The reasons for refusal to allow
inspection or copying of a journal entry shall also be recorded.
(d) When the instrument or document is a contract, the notary public shall
keep an original copy thereof as part of his records and enter in said
records a brief description of the substance thereof and shall give to each
entry a consecutive number, beginning with number one in each calendar
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year. He shall also retain a duplicate original copy for the Clerk of Court.
(e) The notary public shall give to each instrument or document executed,
sworn to, or acknowledged before him a number corresponding to the one
in his register, and shall also state on the instrument or document the
page/s of his register on which the same is recorded. No blank line shall
be left between entries.
(f) In case of a protest of any draft, bill of exchange or promissory note, the
notary public shall make a full and true record of all proceedings in relation
thereto and shall note therein whether the demand for the sum of money
was made, by whom, when, and where; whether he presented such draft,
bill or note; whether notices were given, to whom and in what manner;
where the same was made, when and to whom and where directed; and of
every other fact touching the same.
(g) At the end of each week, the notary public shall certify in his notarial
register the number of instruments or documents executed, sworn to,
acknowledged, or protested before him; or if none, this certificate shall
show this fact.
(h) A certified copy of each month’s entries and a duplicate original copy of
any instrument acknowledged before the notary public shall, within the first
ten (10) days of the month following, be forwarded to the Clerk of Court
and shall be under the responsibility of such officer. If there is no entry to
certify for the month, the notary shall forward a statement to this effect in
lieu of certified copies herein required.
SEC. 3. Signatures and Thumbmarks. – At the time of notarization, the
notary’s notarial register shall be signed or a thumb or other mark affixed
by each:
(a) principal;
(b) credible witness swearing or affirming to the identity of a principal; and
(c) witness to a signature by thumb or other mark, or to a signing by the
notary public on behalf of a person physically unable to sign.
SEC. 4. Inspection, Copying and Disposal. – (a) In the notary’s presence,
any person may inspect an entry in the notarial register, during regular
business hours, provided;
(1) the person’s identity is personally known to the notary public or proven
through competent evidence of identity as defined in these Rules;
(2) the person affixes a signature and thumb or other mark or other
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recognized identifier, in the notarial .register in a separate, dated entry;
(3) the person specifies the month, year, type of instrument or document,
and name of the principal in the notarial act or acts sought; and
(4) the person is shown only the entry or entries specified by him.
(b) The notarial register may be examined by a law enforcement officer in
the course of an official investigation or by virtue of a court order.
(c) If the notary public has a reasonable ground to believe that a person
has a criminal intent or wrongful motive in requesting information from the
notarial register, the notary shall deny access to any entry or entries
therein.
SEC. 5. Loss, Destruction or Damage of Notarial Register. – (a) In case
the notarial register is stolen, lost, destroyed, damaged, or otherwise
rendered unusable or illegible as a record of notarial acts, the notary public
shall, within ten (10) days after informing the appropriate law enforcement
agency in the case of theft or vandalism, notify the Executive Judge by any
means providing a proper receipt or acknowledgment, including registered
mail and also provide a copy or number of any pertinent police report.
(b) Upon revocation or expiration of a notarial commission, or death of the
notary public, the notarial register and notarial records shall immediately
be delivered to the office of the Executive Judge.
SEC. 6. Issuance of Certified True Copies. – The notary public shall
supply a certified true copy of the notarial record, or any part thereof, to
any person applying for such copy upon payment of the legal fees.
RULE VII
SIGNATURE AND SEAL OF NOTARY PUBLIC
SECTION 1. Official Signature. – In notarizing a paper instrument or
document, a notary public shall:
(a) sign by hand on the notarial certificate only the name indicated and as
appearing on the notary’s commission;
(b) not sign using a facsimile stamp or printing device; and
(c) affix his official signature only at the time the notarial act is performed.
SEC. 2. Official Seal. – (a) Every person commissioned as notary public
shall have a seal of office, to be procured at his own expense, which shall
not be possessed or owned by any other person. It shall be of metal,
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circular in shape, two inches in diameter, and shall have the name of the
city or province and the word “Philippines” and his own name on the
margin and the roll of attorney’s number on the face thereof, with the
words “notary public” across the center. A mark, image or impression of
such seal shall be made directly on the paper or parchment on which the
writing appears.
(b) The official seal shall be affixed only at the time the notarial act is
performed and shall be clearly impressed by the notary public on every
page of the instrument or document notarized.
(c) When not in use, the official seal shall be kept safe and secure and
shall be accessible only to the notary public or the person duly authorized
by him.
(d) Within five (5) days after the official seal of a notary public is stolen,
lost, damaged or other otherwise rendered unserviceable in affixing a
legible image, the notary public, after informing the appropriate law
enforcement agency, shall notify the Executive Judge in writing, providing
proper receipt or acknowledgment, including registered mail, and in the
event of a crime committed, provide a copy or entry number of the
appropriate police record. Upon receipt of such notice, if found in order by
the Executive Judge, the latter shall order the notary public to cause notice
of such loss or damage to be published, once a week for three (3)
consecutive weeks, in a newspaper of general circulation in the city or
province where the notary public is commissioned. Thereafter, the
Executive Judge shall issue to the notary public a new Certificate of
Authorization to Purchase a Notarial Seal.
(e) Within five (5) days after the death or resignation of the notary public,
or the revocation or expiration of a notarial commission, the official seal
shall be surrendered to the Executive Judge and shall be destroyed or
defaced in public during office hours. In the event that the missing, lost or
damaged seal is later found or surrendered, it shall be delivered by the
notary public to the Executive Judge to be disposed of in accordance with
this section. Failure to effect such surrender shall constitute contempt of
court. In the event of death of the notary public, the person in possession
of the official seal shall have the duty to surrender it to the Executive
Judge.
SEC. 3. Seal Image. – The notary public shall affix a single, clear, legible,
permanent, and photographically reproducible mark, image or impression
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of the official seal beside his signature on the notarial certificate of a paper
instrument or document.
SEC. 4. Obtaining and Providing Seal. – (a) A vendor or manufacturer of
notarial seals may not sell said product without a written authorization from
the Executive Judge.
(b) Upon written application and after payment of the application fee, the
Executive Judge may issue an authorization to sell to a vendor or
manufacturer of notarial seals after verification and investigation of the
latter’s qualifications. The Executive Judge shall charge an authorization
fee in the amount of Php 4,000 for the vendor and Php 8,000 for the
manufacturer. If a manufacturer is also a vendor, he shall only pay the
manufacturer’s authorization fee.
(c) The authorization shall be in effect for a period of four (4) years from
the date of its issuance and may be renewed by the Executive Judge for a
similar period upon payment of the authorization fee mentioned in the
preceding paragraph.
(d) A vendor or manufacturer shall not sell a seal to a buyer except upon
submission of a certified copy of the commission and the Certificate of
Authorization to Purchase a Notarial Seal issued by the Executive Judge.
A notary public obtaining a new seal as a result of change of name shall
present to the vendor or manufacturer a certified copy of the Confirmation
of the Change of Name issued by the Executive Judge.
(e) Only one seal may be sold by a vendor or manufacturer for each
Certificate of Authorization to Purchase a Notarial Seal,
(f) After the sale, the vendor or manufacturer shall affix a mark, image or
impression of the seal to the Certificate of Authorization to Purchase a
Notarial Seal and submit the completed Certificate to the Executive Judge.
Copies of the Certificate of Authorization to Purchase a Notarial Seal and
the buyer’s commission shall be kept in the files of the vendor or
manufacturer for four (4) years after the sale.
(g) A notary public obtaining a new seal as a result of change of name
shall present to the vendor a certified copy of the order confirming the
change of name issued by the Executive Judge.
RULE VIII
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NOTARIAL CERTIFICATES
SECTION 1. Form of Notarial Certificate. – The notarial form used for any
notarial instrument or document shall conform to all the requisites
prescribed herein, the Rules of Court and all other provisions of issuances
by the Supreme Court and in applicable laws.
SEC. 2. Contents of the Concluding Part of the Notarial Certificate. – The
notarial certificate shall include the following:
(a) the name of the notary public as exactly indicated in the commission;
(b) the serial number of the commission of the notary public;
(c) the words “Notary Public” and the province or city where the notary
public is commissioned, the expiration date of the commission, the
office address of the notary public; and
(d) the roll of attorney’s number, the professional tax receipt number and
the place and date of issuance thereof, and the IBP membership
number.
RULE IX
CERTIFICATE OF AUTHORITY OF NOTARIES PUBLIC
SECTION 1. Certificate of Authority for a Notarial Act. – A certificate of
authority evidencing the authenticity of the official seal and signature of a
notary public shall be issued by the Executive Judge upon request in
substantially the following form:
CERTIFICATE OF AUTHORITY FOR A NOTARIAL ACT
I, (name, title, jurisdiction of the Executive Judge), certify that (name of
notary public), the person named in the seal and signature on the attached
document, is a Notary Public in and for the (City/Municipality/Province) of
the Republic of the Philippines and authorized to act as such at the time of
the document’s notarization.
IN WITNESS WHEREOF, I have affixed below my signature and seal of
this office this (date) day of (month) (year).
_________________
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(official signature)
(seal of Executive Judge)
RULE X
CHANGES OF STATUS OF NOTARY PUBLIC
SECTION 1. Change of Name and Address.
Within ten (10) days after the change of name of the notary public by court
order or by marriage, or after ceasing to maintain the regular place of work
or business, the notary public shall submit a signed and dated notice of
such fact to the Executive Judge.
The notary public shall not notarize until:
(a) he receives from the Executive Judge a confirmation of the new name
of the notary public and/or change of regular place of work or
business; and
(b) a new seal bearing the new name has been obtained.
The foregoing notwithstanding, until the aforementioned steps have been
completed, the notary public may continue to use the former name or
regular place of work or business in performing notarial acts for three (3)
months from the date of the change, which may be extended once for valid
and just cause by the Executive Judge for another period not exceeding
three (3) months.
SEC. 2. Resignation. – A notary public may resign his commission by
personally submitting a written, dated and signed formal notice to the
Executive Judge together with his notarial seal, notarial register and
records. Effective from the date indicated in the notice, he shall
immediately cease to perform notarial acts. In the event of his incapacity to
personally appear, the submission of the notice may be performed by his
duly authorized representative.
SEC. 3. Publication of Resignation. – The Executive Judge shall
immediately order the Clerk of Court to post in a conspicuous place in the
offices of the Executive Judge and of the Clerk of Court the names of
notaries public who have resigned their notarial commissions and the
effective dates of their resignation.
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RULE XI
REVOCATION OF COMMISSION AND DISCIPLINARY SANCTIONS
SECTION 1. Revocation and Administrative Sanctions. – (a) The
Executive Judge shall revoke a notarial commission for any ground on
which an application for a commission may be denied.
(b) In addition, the Executive Judge may revoke the commission of, or
impose appropriate administrative sanctions upon, any notary public who:
(1) fails to keep a notarial register;
(2) fails to make the proper entry or entries in his notarial register
concerning his notarial acts;
(3) fails to send the copy of the entries to the Executive Judge within the
first ten (10) days of the month following;
(4) fails to affix to acknowledgments the date of expiration of his
commission;
(5) fails to submit his notarial register, when filled, to the Executive Judge;
(6) fails to make his report, within a reasonable time, to the Executive
Judge concerning the performance of his duties, as may be required
by the judge;
(7) fails to require the presence of a principal at the time of the notarial
act;
(8) fails to identify a principal on the basis of personal knowledge or
competent evidence;
(9) executes a false or incomplete certificate under Section 5, Rule IV;
(10) knowingly performs or fails to perform any other act prohibited or
mandated by these Rules; and
(11) commits any other dereliction or act which in the judgment of the
Executive Judge constitutes good cause for revocation of commission
or imposition of administrative sanction.
(c) Upon verified complaint by an interested, affected or aggrieved person,
the notary public shall be required to file a verified answer to the
complaint.
If the answer of the notary public is not satisfactory, the Executive Judge
shall conduct a summary hearing. If the allegations of the complaint are
not proven, the complaint shall be dismissed. If the charges are duly
established, the Executive Judge shall impose the appropriate
administrative sanctions. In either case, the aggrieved party may appeal
the decision to the Supreme Court for review. Pending the appeal, an
order imposing disciplinary sanctions shall be immediately executory,
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unless otherwise ordered by the Supreme Court.
(d) The Executive Judge may motu proprio initiate administrative
proceedings against a notary public, subject to the procedures prescribed
in paragraph (c) above and impose the appropriate administrative
sanctions on the grounds mentioned in the preceding paragraphs (a) and
(b).
SEC. 2. Supervision and Monitoring of Notaries Public. – The Executive
Judge shall at all times exercise supervision over notaries public and shall
closely monitor their activities.
SEC. 3. Publication of Revocations and Administrative Sanctions. – The
Executive Judge shall immediately order the Clerk of Court to post in a
conspicuous place in the offices of the Executive Judge and of the Clerk of
Court the names of notaries public who have been administratively
sanctioned or whose notarial commissions have been revoked.
SEC. 4. Death of Notary Public. – If a notary public dies before fulfilling the
obligations in Section 4(e), Rule VI and Section 2(e), Rule VII, the
Executive Judge, upon being notified of such death, shall forthwith cause
compliance with the provisions of these sections.
RULE XII
SPECIAL PROVISIONS
SECTION 1. Punishable Acts. – The Executive Judge shall cause the
prosecution of any person who:
(a) knowingly acts or otherwise impersonates a notary public;
(b) knowingly obtains, conceals, defaces, or destroys the seal, notarial
register, or official records of a notary public; and
(c) knowingly solicits, coerces, or in any way influences a notary public to
commit official misconduct.
SEC 2. Reports to the Supreme Court. – The Executive Judge concerned
shall submit semestral reports to the Supreme Court on discipline and
prosecution of notaries public.
RULE XIII
REPEALING AND EFFECTIVITY PROVISIONS
SECTION 1. Repeal. – All rules and parts of rules, including issuances of
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the Supreme Court inconsistent herewith, are hereby repealed or
accordingly modified.
SEC. 2. Effective Date. – These Rules shall take effect on the first day of
August 2004, and shall be published in a newspaper of general circulation
in the Philippines which provides sufficiently wide circulation.
Promulgated this 6th day of July, 2004.
Rule II, Sections 1-6, 12 (see Amendment to Sec 12(a) of the 2004
Rules on Notarial Practice, A.M. No. 02-8-13-SC, SC En Banc
Resolution dated February 19, 2008)
Quoted hereunder, for your information, is a resolution of the Court En
Banc dated February 19, 2008
“A.M. No. 02-8-13-SC.- Re: 2004 Rules on Notarial Practice (Additional
Guidelines for the Implementation of the MOA Between OCA and OSG on
Notarial Registers).- The Court Resolved, upon the recommendation of the
Sub Committee on the Revision of the Rules Governing Notaries Public,
to AMEND Sec. 12(a), Rule II of the 2004 Rules on notarial Practice, to
wit:
“Rule II
DEFINITIONS
xxx
“Sec. 12. Competent Evidence of Identity.- The phrase “Competent
evidence of identity” refers to the identification of an individual based on:
(a) at least one current identification document issued by an official
agency bearing the photograph and signature of the individual, such
as but not limited to, passport, driver’s license, Professional
Regulations Commission ID, National Bureau of Investigation
clearance, police clearance, postal ID, voter’s ID, Barangay
certification, Government Service and Insurance System (GSIS) e-
card, Social Security System (SSS) card, Philhealth card, senior
citizen card, Overseas Workers Welfare Administration (OWWA) ID,
OFW ID, seaman’s book, alien certificate of registration/immigrant
certificate of registration, government office ID, certificate from the
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National Council for the Welfare of Disabled Persons
(NCWDP), Department of Social Welfare and Development (DSWD)
certification; or
(b) xxxxx.”
Ex-Officio Notaries Public
Municipal trial court (MTC) and municipal circuit trial court (MCTC) judges
are empowered to perform the function of notaries public ex
officio PROVIDED:
1. They may do so only in the notarization of documents connected with
the exercise of their official functions and duties
2. They may not undertake the preparation and acknowledgment of
private documents, contracts and other acts of conveyances which
bear no direct relation to the performance of their functions as judges.
3. They are prohibited from engaging in the private practice of law
Rule when there are still municipalities which have neither lawyers
nor notary public:
MTC and MCTC judges assigned to municipalities or circuits with no
lawyers or notaries public may, in the capacity as notaries public ex officio,
may perform any act within the competency of a regular notary public,
provided that:
(1) all notarial fees charged be for the account of the Government and
turned over to the municipal treasurer; and,
(2) certification be made in the notarized documents attesting to the lack
of any lawyer or notary public in such municipality or circuit.
Guidelines relative to printing and distribution of notarial books, 2004
Rules on Notarial Practice, A.M. No. 02-8-13-SC, SC En Banc
Resolution dated August 15, 2006
Re: 2004 Rules on Notarial Practice
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court
dated AUG 15 2006.
“A.M. No. 02-8-13-SC.- Re: 2004 Rules on Notarial Practice.- The Court
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Resolved to
(a) APPROVE the Proposed Guidelines in the Implementation of the
Provisions of the Memorandum of Agreement between the Office of the
Court Administrator and the Office of the Solicitor General relative to
printing and distribution of Notarial Books, to wit:
1. Notaries public who render legal and notarial services within the
National Capital Judicial Region shall secure their notarial registers
from the Property Division, Office of the Administrative Services of the
Office of the Court Administrator (OCA).
2. Notaries public in other judicial regions shall secure their notarial
registers from the Office of the Clerk of Court (OCC) of the Regional
Trial Court (RTC) of the city or province under the supervision of the
Executive Judge who issued their respective notarial
commissions. However, they may also secure notarial registers from
the Office of the Court Administrator.
3. Notarial registers shall be available at P1,200.00[1][1] each. Said
amount shall cover only the costs of printing and binding of the notarial
registers exclusive of shipping charges when sold in the
provinces. Payments shall be made either to the Cash Division,
Financial Management Office, OCA, or to the Clerk of
Court/accountable officer in the OCC of the RTC, as the case may be.
a. The amount collected shall be receipted and deposited to a
separate account of the fiduciary fund to be known as the “Notarial
Register Fund” (NRF).
b. The Cash Division, FMO, OCA, shall maintain with the Land Bank
of the Philippines a separate special account of the fiduciary fund
specifically for the NRF. A separate cashbook shall also be kept
and maintained for the fund. Withdrawals of deposits shall be
made only upon authorization or approval by the Chief Justice or
his duly authorized representative.
c. The Court Administrator and the Financial Office of the OCA shall
be the authorized signatories for this fund.
4. In view of the current unavailability of notarial registers, notaries public
shall be allowed to use the temporary form attached hereto. The
notary public concerned shall file a written request to use the
improvised form with the executive judge that issued his
commission. A copy of his current commission shall be attached to
such request.
The notaries public who have been authorized to use such forms shall
have them book-bound and initialed on each and every page by the
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executive judge before whom the request was filed. Each bound copy
shall have a maximum of 106 pages and shall be treated and used in
the same manner as the new notarial book.
Each request shall be limited to one bound copy. Should the bound
copy be used up before the new notarial books are available, the
notary public concerned may request anew for the use of bound
temporary forms. The use of bound temporary forms shall end when
the new notarial books are available but, upon written request, the
executive judge may allow the notary public to use up the bound
temporary forms.
5. The OCA shall, within the first ten (10) days of the first month of every
quarter remit to the Office of the Solicitor General an amount
equivalent to 10% of the gross collections during the preceding quarter
as the share of the OSG in the sale of the notarial registers.
6. The printed certification of the Court Administrator as to the number of
pages of each notarial register shall be countersigned by the following:
a. In the National Capital Judicial Region, the official of the Office of
the Court Administrator authorized by the Court Administrator to so
countersign; and
b. In the case of the other judicial regions, the Clerk of Court of the
Regional Trial Court of the city or province where such book has
been obtained for cost.
7. The Supreme Court Printing Office shall print the notarial registers. In
the event the Printing Office cannot meet the requirements of the OCA,
and subject to Republic Act No. 9184 (Government Procurement
Reform Act), its implementing rules and regulations, and existing
Supreme Court issuances on procurement, the Court Administrator
may contract out the printing of notarial registers to the following
printers in the following order:
a. UP Printing Services
b. The National Printing Office, or
c. Private printing firm
The OCA shall resort to the third option only if the first two printers can not
accommodate the requirements of the Court.
After the approval by the Court of these guidelines, the OCA shall
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disseminate the same through a circular.
(b) DENY for lack of merit the motion filed by Chief Public Attorney Persida
V. Rueda-Acosta, praying for a reconsideration of the resolution of January
31, 2006 which denied her request for the exemption of PAO lawyers from
the payment of the fees for notarial commission and for the exemption of
their clients from the payment of filing fees;
(c) NOTE the letter dated September 5, 2005 of Mr. Prescillano Y.
Aguinias, Jr.;
(d) CONFIRM the opinions of then Court Administrator Presbitero J.
Velasco, Jr. and Deputy Court Administrator Jose P. Perez that the Court
does not render advisory opinions;
(e) INFORM Mr. Agunias, Jr. that neither does the Subcommittee on
Revision of Rules Governing Notaries Public render advisory opinions;
(f) AUTHORIZE the Clerks of Court of the Regional Trial Courts to notarize
not only documents relating to the exercise of their official functions but
also private documents, subject to the following conditions: (i) all notarial
fees charged in accordance with Section 7(o) of Rule 141 of the Rules of
Court, and, with respect to private documents, in accordance with the
notarial fee that the Supreme Court may prescribe in compliance with
Section 1, Rule V of the 2004 Rules on Notarial Practice, shall be for the
account of the Judiciary and (ii) they certify in the notarized documents that
there are no notaries public within the territorial jurisdiction of the Regional
Trial Court;
(g) DIRECT the Court Administrator to issue a circular for the purpose of
implementing the above authority; and
(h) ADOPT a consolidated and uniform rate of fees for notarial
services.” Corona, J., on leave. Azcuna, J., abroad on official business.
Cruz v. Centron, A.M. No. P-02-1644. November 11, 2004; 442 SCRA 53
(2004)
Clerks of Court are notaries public ex officio, and may thus notarize
documents or administer oaths but only when the matter is related to the
exercise of their official functions. As we held in Astorga vs. Solas, clerks of
court should not, in their ex-officio capacity, take part in the execution of
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private documents bearing no relation at all to their official functions. In the
present case, it is not within respondent’s competence, as it is not part of her
official function and duty, to notarize the subject deed of sale. Respondent is
guilty of abuse of authority.
Tigno v. Spouses Aquino, G.R. No. 129416. November 25, 2004; 444
SCRA 61 (2004)
Jurat Acknowledgement
An acknowledgment is the act of A jurat is that part of an affidavit
one who has executed a deed in where the officer certifies that the
going before some competent same was sworn before him.
officer or court and declaring it to be
his act or deed;
Supreme Court Circular No. I-90 permits notaries public ex officio to perform
any act within the competency of a regular notary public provided that
certification be made in the notarized documents attesting to the lack of any
lawyer or notary public in such municipality or circuit
The validity of a notarial certification necessarily derives from the authority of
the notarial officer. If the notary public does not have the capacity to notarize
a document, but does so anyway, then the document should be treated as
unnotarized.
The notarization of a document carries considerable legal effect. Notarization
of a private document converts such document into a public one, and renders
it admissible in court without further proof of its authenticity. Thus,
notarization is not an empty routine; to the contrary, it engages public interest
in a substantial degree and the protection of that interest requires preventing
those who are not qualified or authorized to act as notaries public from
imposing upon the public and the courts and administrative offices generally.
Fuentes v. Buno, A.M. No. MTJ-99-1204 (Formerly OCA IPI No. 97-355-
MTJ), July 28, 2008; 560 SCRA 22 (2008)
Municipal Trial Courts and Municipal Circuit Trial Courts judges may act as
notaries public ex officio in the notarization of documents connected only with
the exercise of their official functions and duties—they may not, as notaries
public ex officio, undertake the preparation and acknowledgment of private
documents, contracts and other acts of conveyances which bear no direct
relation to the performance of their functions as judges.
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Vda. De Rosales v. Ramos, A.C. No. 5645. July 2, 2002; 383 SCRA 498
(2002)
The Notarial Law is explicit on the obligations and duties of a notary public. It
requires him to keep a notarial register where he shall record all his official
acts as notary, and specifies what information with regard to the notarized
document should be entered therein. Failure to perform this duty results in
the revocation of his commission as notary public.
Notarization converts a private document into a public document thus making
that document admissible in evidence without further proof of its authenticity.
A notarial document is by law entitled to full faith and credit upon its face.
Courts, administrative agencies and the public at large must be able to rely
upon the acknowledgment executed by a notary public and appended to a
private instrument.
A notary public should not notarize a document unless the persons who
signed the same are the very same persons who executed and personally
appeared before him to attest to the contents and truth of what are stated
therein.
If the document or instrument does not appear in the notarial records and
there is no copy of it therein, doubt is engendered that the document or
instrument was not really notarized, so that it is not a public document and
cannot bolster any claim made based on this document; Considering the
evidentiary value given to notarized documents, the failure of the notary
public to record the document in his notarial registry is tantamount to falsely
making it appear that the document was notarized when in fact it was not.
The principal function of a notary public is to authenticate documents—when
he certifies to the due execution and delivery of the document under his hand
and seal he gives the document the force of evidence; Where the
notarypublic is a lawyer, a graver responsibility is placed upon him by reason
of his solemn oath to obey the laws and to do no falsehood or consent to the
doing of any.
The principal function of a notary public is to authenticate documents—when
he certifies to the due execution and delivery of the document under his hand
and seal he gives the document the force of evidence; Where the notary
public is a lawyer, a graver responsibility is placed upon him by reason of his
solemn oath to obey the laws and to do no falsehood or consent to the doing
of any.
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Dela Cruz v. Zabala, A.C. No. 6294. November 17, 2004; 442 SCRA 407
(2004)
The function of a notary public is, among others, to guard against any illegal
or immoral arrangements. By affixing his notarial seal on the instrument, he
converted the Deed of Absolute Sale, from a private document into a public
document. In doing so, respondent, in effect, proclaimed to the world that (1)
all the parties therein personally appeared before him; (2) they are all
personally known to him; (3) they were the same persons who executed the
instruments; (4) he inquired into the voluntariness of execution of the
instrument; and (5) they acknowledged personally before him that they
voluntarily and freely executed the same.
Lee v. Tambago, A.C. No. 5281, February 12, 2008; 544 SCRA 393 (2008)
The Civil Code likewise requires that a will must be acknowledged before a
notary public by the testator and the witnesses. The importance of this
requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate
provision. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or
deed. It involves an extra step undertaken whereby the signatory actually
declares to the notary public that the same is his or her own free act and
deed. The acknowledgment in a notarial will has a two-fold purpose: (1) to
safeguard the testator’s wishes long after his demise and (2) to assure that
his estate is administered in the manner that he intends it to be done.
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limited to, passport, driver’s license, Professional Regulations
Commission ID, National Bureau of Investigation clearance, police
clearance, postal ID, voter’s ID, Barangaycertification, Government
Service Insurance System (GSIS) e-card, Social Security System (SSS)
card, Philhealth card, senior citizen card, Overseas Workers Welfare
Administration (OWWA) ID, OFW ID, seaman’s book, alien certi­ficate of
registration/immigrant certificate of registration, government office ID,
certificate from the National Council for the Welfare of Disabled Persons
(NCWDP), Department of Social Welfare and Development certification
[as amended by A.M. No. 02-8-13-SC dated February 19, 2008]; or
(b) the oath or affirmation of one credible witness not privy to the instrument,
document or transaction who is personally known to the notary public
and who personally knows the individual, or of two credible witnesses
neither of whom is privy to the instrument, document or transaction who
each personally knows the individual and shows to the notary public
documentary identification.

Dela Cruz v. Dimaano, A.C. No. 7781, September 12, 2008; 565 SCRA 1
(2008)

Without the appearance of the person who actually executed the document
in question, notaries public would be unable to verify the genuineness of the
signature of the acknowledging party and to ascertain that the document is
the party’s free act or deed. Furthermore, notaries public are required by the
Notarial Law to certify that the party to the instrument has acknowledged and
presented before the notaries public the proper residence certificate (or
exemption from the residence certificate) and to enter its number, place, and
date of issue as part of certification. Rule II, Sec. 12 of the 2004 Rules on
Notarial Practice now requires a party to the instrument to present competent
evidence of identity. Sec. 12 provides: Sec. 12. Competent Evidence of
Identity.—The phrase “competent evidence of identity” refers to the
identification of an individual based on:
(a) at least one current identification document issued by an official agency
bearing the photograph and signature of the individual, such as but not
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Admissibility of Documents
instrument or document involved. (31a)
AUTHENTICATION AND PROOF OF DOCUMENTS

Section 19. Classes of Documents. — For the purpose of their

presentation evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of
the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines, of private documents required
by law to the entered therein.
All other writings are private. (20a)
Section 20. Proof of private document. — Before any private document
offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the
maker.
Any other private document need only be identified as that which it is
claimed to be. (21a)
Heirs of Amparo Del Rosario v. Santos, G.R. No. L-46892 September 30,
1981; 108 SCRA 43 (1981)
The parol evidence rule forbids any addition to or contradiction of the terms
of a written instrument by testimony purporting to show that, at or before the
signing of the document, other or different terms were orally agreed upon by
the parties.
Permanent Savings and Loan Bank v. Velarde, G.R. NO. 140608,
September 23, 2004; 439 SCRA 1 (2004)
The admission of the genuineness and due execution of a document means
that the party whose signature it bears admits that he voluntarily signed the
document or it was signed by another for him and with his authority; that at
the time it was signed it was in words and figures exactly as set out in the
pleading of the party relying upon it; that the document was delivered; and
that any formalities required by law, such as a seal, an acknowledgment, or
revenue stamp, which it lacks, are waived by him. Also, it effectively
eliminated any defense relating to the authenticity and due execution of the
document, e.g., that the document was spurious, counterfeit, or of different
import on its face as the one executed by the parties; or that the signatures
appearing thereon were forgeries; or that the signatures were unauthorized.

Public documents as evidence and Proof of notarial documents,

Sections 23 & 30, Rule 132 of the Revised Rules on Evidence
Section 23. Public documents as evidence. — Documents consisting of
entries in public records made in the performance of a duty by a public
officer are prima facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the fact which
gave rise to their execution and of the date of the latter. (24a)

Section 30. Proof of notarial documents. — Every instrument duly

acknowledged or proved and certified as provided by law, may be
presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the

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NOTARIAL ACTS, THE LAW ON AGENCY AND POWER OF
ATTORNEY
Notarial Acts
Forms usually attached to Legal Documents
Jurat – Rule II, Section 6
SEC. 6. Jurat. – “Jurat” refers to an act in which an individual on a single
occasion:
(a) appears in person before the notary public and presents an instrument
or document;
(b) is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by these
Rules;
(c) signs the instrument or document in the presence of the notary; and
(d) takes an oath or affirmation before the notary public as to such
instrument or document.
Acknowledgment – Rule II, Section 1
SECTION 1. Acknowledgment. – “Acknowledgment” refers to an act in
which an individual on a single occasion:
(a) appears in person before the notary public and presents an integrally
complete instrument or document;
(b) is attested to be personally known to the notary public or identified by
the notary public through competent evidence of identity as defined by
these Rules; and
(c) (c) represents to the notary public that the signature on the instrument
or document was voluntarily affixed by him for the purposes stated in
the instrument or document, declares that he has executed the
instrument or document as his free and voluntary act and deed, and, if
he acts in a particular representative capacity, that he has the authority
to sign in that capacity.
Gamildo v. New Bilibid Prisons, G.R. No. 114829 March 1, 1995; 242
SCRA 83 (1995)
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A jurat is that part of an affidavit in which the officer certifies that the
instrument was sworn to before him. It is not a part of a pleading but merely
evidences the fact that the affidavit was properly made. The jurat in the
petition in the case also begins with the words “subscribed and sworn to me.”
In a jurat, the affiant must sign the document in the presence of and take his
oath before a notary public or any other person authorized to administer
oaths.
Affirmation or Oath – Rule II, Section 2
SEC. 2. Affirmation or Oath. - The term “Affirmation” or “Oath” refers to an
act in which an individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by these Rules;
(c) avows under penalty of law to the whole truth of the contents of the
instrument or document.
Commission – Rule II, Section 3
SEC. 3. Commission. - “Commission” refers to the grant of authority to
perform notarial acts and to the written evidence of the authority.
Copy certification – Rule II, Section 4
SEC. 4. Copy Certification. - “Copy Certification” refers to a notarial act in
which a notary public.
(a) is presented with an instrument or document that is neither a vital
record, a public record, nor publicly recordable;
(b) copies or supervises the copying of the instrument or document;
(c) compares the instrument or document with the copy; and
(d) determines that the copy is accurate and complete.
Signature witnessing – Rule II, Section 14
SEC. 14. Signature Witnessing. - The term “signature witnessing” refers to
a notarial act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument
or document;
(b) is personally known to the notary public or identified by the notary
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William Go Que Construction and/or William Go Que v. CA, G.R. No.
public through competent evidence of identity as defined by these
191699, April 19, 2016
Rules; and
(c) signs the instrument or document in the presence of the notary public.
Under Section 6, Rule II of A.M. No. 02-8-13-SC63 dated July 6, 2004,
entitled the “2004 Rules on Notarial Practice” (2004 Rules on Notarial
Practice), a jurat refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument or
Notarial Register – Rule II, Section 5
document;
(b) is personally known to the notary public or identified by the notary
SEC. 5. Notarial Register. - “Notarial Register” refers to a permanently
public through competent evidence of identity as defined by these
bound book with numbered pages containing a chronological record of
Rules;
notarial acts performed by a notary public.
(c) signs the instrument or document in the presence of the notary; and
(d) takes an oath or affirmation before the notary public as to such
Notarial Certificate – Rule II, Section 8
instrument or document.
SEC. 8. Notarial Certificate. - “Notarial Certificate” refers to the part of, or
Under Section 12, Rule II of the 2004 Rules on Notarial Practice, “competent
attachment to, a notarized instrument or document that is completed by the
evidence of identity” as used in the foregoing provision refers to the
notary public, bears the notary's signature and seal, and states the facts
identification of an individual based on:
attested to by the notary public in a particular notarization as provided for
(a) at least one current identification document issued by an official
by these Rules.
agency bearing the photograph and signature of the individual, such
as but not limited to, passport, driver’s license, Professional Regulations
Competent Evidence of Identity – Rule II, Section 12 (see Amendment
Commission ID, National Bureau of Investigation clearance, police
to Sec 12(a) of the 2004 Rules on Notarial Practice, A.M. No. 02-8-13-
clearance, postal ID, voter’s ID, Barangay certification, Government
SC, SC En Banc Resolution dated February 19, 2008)
Service and Insurance System (GSIS) e-card, Social Security System
“Sec. 12. Competent Evidence of Identity.- The phrase “Competent
(SSS) card, Philhealth card, senior citizen card, Overseas Workers
evidence of identity” refers to the identification of an individual based on:
Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien
certificate of registration/immi-grant certificate of registration, government
(a) at least one current identification document issued by an official agency
office ID, certification from the National Council for the Welfare of
bearing the photograph and signature of the individual, such as but not
Disabled Persons (NCWDP), Department of Social Welfare and
limited to, passport, driver’s license, Professional Regulations Commission
Development (DSWD) certification; or
ID, National Bureau of Investigation clearance, police clearance, postal ID, (b) the oath or affirmation of one credible witness not privy to the
voter’s ID, Barangay certification, Government Service and Insurance instrument, document or transaction who is personally known to the
System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, notary public and who personally knows the individual, or of two credible
senior citizen card, Overseas Workers Welfare Administration (OWWA) ID,
witnesses neither of whom is privy to the instrument, document or
OFW ID, seaman’s book, alien certificate of registration/immigrant
transaction who each personally knows the individual and shows to the
certificate of registration, government office ID, certificate from the National
notary public documentary identification.
Council for the Welfare of Disabled Persons (NCWDP), Department of
Social Welfare and Development (DSWD) certification;
Authority to certify the affixing of a signature by thumb or other
or mark – Rule IV, Section 1(b)

(b) xxxxx.” SECTION 1. Powers. - (b) A notary public is authorized to certify the
affixing of a signature by thumb or other mark on an instrument or
document presented for notarization if.
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(1) the thumb or other mark is affixed in the presence of the notary public
and of two (2) disinterested and unaffected witnesses to the
instrument or document;
(2) both witnesses sign their own names in addition to the thumb or other
mark;
(3) the notary public writes below the thumb or other mark: "Thumb or
Other Mark affixed by (name of signatory by mark) in the presence of
(names and addresses of witnesses) and undersigned notary public";
and
(4) the notary public notarizes the signature by thumb or other mark
through an acknowledgment, jurat, or signature witnessing.
Signing on behalf of a person physically unable to sign or make a
mark – Rule IV, Section 1(c)
(c) A notary public is authorized to sign on behalf of a person who is
physically unable to sign or make a mark on an instrument or document if:
(1) the notary public is directed by the person unable to sign or make a
mark to sign on his behalf;
(2) the signature of the notary public is affixed in the presence of two
disinterested and unaffected witnesses to the instrument or
document;
(3) both witnesses sign their own names;
(4) the notary public writes below his signature: “Signature affixed by
notary in presence of (names and addresses of person and two [2]
witnesses)”; and
(5) the notary public notarizes his signature by acknowledgment or jurat.
Power of Attorney
In General
NCC, CHAPTER 1
NATURE, FORM AND KINDS OF AGENCY
Art. 1868. By the contract of agency a person binds himself to render
some service or to do something in representation or on behalf of another,
with the consent or authority of the latter. (1709a)
Art. 1869. Agency may be express, or implied from the acts of the
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principal, from his silence or lack of action, or his failure to repudiate the
agency, knowing that another person is acting on his behalf without
authority.
Agency may be oral, unless the law requires a specific form. (1710a)
Art. 1870. Acceptance by the agent may also be express, or implied from
his acts which carry out the agency, or from his silence or inaction
according to the circumstances. (n)
Art. 1871. Between persons who are present, the acceptance of the
agency may also be implied if the principal delivers his power of attorney
to the agent and the latter receives it without any objection. (n)
Art. 1872. Between persons who are absent, the acceptance of the
agency cannot be implied from the silence of the agent, except:
(1) When the principal transmits his power of attorney to the agent, who
receives it without any objection;
(2) When the principal entrusts to him by letter or telegram a power of
attorney with respect to the business in which he is habitually engaged
as an agent, and he did not reply to the letter or telegram. (n)
Art. 1873. If a person specially informs another or states by public
advertisement that he has given a power of attorney to a third person, the
latter thereby becomes a duly authorized agent, in the former case with
respect to the person who received the special information, and in the
latter case with regard to any person.
The power shall continue to be in full force until the notice is rescinded in
the same manner in which it was given. (n)
Art. 1874. When a sale of a piece of land or any interest therein is through
an agent, the authority of the latter shall be in writing; otherwise, the sale
shall be void. (n)
Art. 1875. Agency is presumed to be for a compensation, unless there is
proof to the contrary. (n)
Art. 1876. An agency is either general or special.
The former comprises all the business of the principal. The latter, one or
21

more specific transactions. (1712)
Art. 1877. An agency couched in general terms comprises only acts of
administration, even if the principal should state that he withholds no
power or that the agent may execute such acts as he may consider
appropriate, or even though the agency should authorize a general and
unlimited management. (n)
Art. 1878. Special powers of attorney are necessary in the following cases:
(1) To make such payments as are not usually considered as acts of
administration;
(2) To effect novations which put an end to obligations already in
existence at the time the agency was constituted;
(3) To compromise, to submit questions to arbitration, to renounce the
right to appeal from a judgment, to waive objections to the venue of an
action or to abandon a prescription already acquired;
(4) To waive any obligation gratuitously;
(5) To enter into any contract by which the ownership of an immovable is
transmitted or acquired either gratuitously or for a valuable
consideration;
(6) To make gifts, except customary ones for charity or those made to
employees in the business managed by the agent;
(7) To loan or borrow money, unless the latter act be urgent and
indispensable for the preservation of the things which are under
administration;
(8) To lease any real property to another person for more than one year;
(9) To bind the principal to render some service without compensation;
(10) To bind the principal in a contract of partnership;
(11) To obligate the principal as a guarantor or surety;
(12) To create or convey real rights over immovable property;
(13) To accept or repudiate an inheritance;
(14) To ratify or recognize obligations contracted before the agency;
(15) Any other act of strict dominion. (n)
Art. 1879. A special power to sell excludes the power to mortgage; and a
special power to mortgage does not include the power to sell. (n)
Art. 1880. A special power to compromise does not authorize submission
to arbitration. (1713a)
Art. 1881. The agent must act within the scope of his authority. He may do
such acts as may be conducive to the accomplishment of the purpose of
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the agency. (1714a)
Art. 1882. The limits of the agent's authority shall not be considered
exceeded should it have been performed in a manner more advantageous
to the principal than that specified by him. (1715)
Art. 1883. If an agent acts in his own name, the principal has no right of
action against the persons with whom the agent has contracted; neither
have such persons against the principal.
In such case the agent is the one directly bound in favor of the person with
whom he has contracted, as if the transaction were his own, except when
the contract involves things belonging to the principal.
The provisions of this article shall be understood to be without prejudice to
the actions between the principal and agent. (1717)
PD 1529, Sec. 64
Power of attorney. Any person may, by power of attorney, convey or
otherwise deal with registered land and the same shall be registered with
the Register of Deeds of the province or city where the land lies. Any
instrument revoking such power of attorney shall be registered in like
manner.
B. Kinds
1. General Power of Attorney
2. Special Power of Attorney
Francisco A. Veloso v. CA, G.R. No. 102737, August 21, 1996
Where the general power of attorney expressly authorizes the agent or
attorney in fact the power to sell, there is no need to execute a separate and
special power of attorney.
Boaz International Trading Corporation v. Woodward Japan, Inc., G.R.
No. 147793. December 11, 2003; 418 SCRA 287 (2003)
Settled is the rule that the negligence of counsel binds the client; If the
negligence of counsel be admitted as a reason for opening a case, there
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would never be an end to litigation so long as there is a new counsel to be
hired every time it is shown that the prior one had not been sufficiently
diligent, experienced or learned.
Revocation of Power of Attorney
Carlos Sevilla, et al. v. CA, G.R. No. L-41182-3, April 16, 1988
But unlike simple grants of a power of attorney, the agency that we hereby
declare to be compatible with the intent of the parties, cannot be revoked at
will. The reason is that it is one coupled with an interest, the agency having
been created for the mutual interest of the agent and the principal. It appears
that Lina Sevilla is a bona fide travel agent herself, and as such, she had
acquired an interest in the business entrusted to her. Moreover, she had
assumed a personal obligation for the operation thereof, holding herself
solidarily liable for the payment of rentals. She continued the business, using
her own name, after Tourist World had stopped further operations. Her
interest, obviously, is not limited to the commissions she earned as a result
of her business transactions. but one that extendB to the very subject matter
of the power of management delegated to her. It is an agency that, as we
said, cannot be revoked at the pleasure of the principal. Accordingly, the
revocation complained of should entitle the petitioner, Lina Sevilla, to
damages.
Nelita Bacaling v. Felomino Muya, et al, G.R. Nos.148404-05, April 11,
2002
A principal cannot revoke at her whim and pleasure an irrevocable special
power of attorney where the agency is one coupled with interest; The
fiduciary relationship inherent in ordinary contracts of agency is replaced by
material consideration in an agency coupled with interest which bars the
removal or dismissal of the agent as attorney-in-fact on the ground of alleged
loss of trust and confidence.
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Contracts
I. Ownership
A. In General
Different Modes of Acquiring Ownership
Article 712. Ownership is acquired by occupation and by intellectual
creation.
Ownership and other real rights over property are acquired and
transmitted by law, by donation, by testate and intestate succession, and
in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.
San Lorenzo Development Corporation v. CA, G.R. No. 124242, January
21, 2005.
In relation to the acquisition and transfer of ownership, it should be noted that
sale is not a mode, but merely a title. A mode is the legal means by which
dominion or ownership is created, transferred or destroyed, but title is only
the legal basis by which to affect dominion or ownership.
Contracts only constitute titles or rights to the transfer or acquisition of
ownership, while delivery or tradition is the mode of accomplishing the same.
Therefore, sale by itself does not transfer or affect ownership; the most that
sale does is to create the obligation to transfer ownership. It is tradition or
delivery, as a consequence of sale, that actually transfers ownership.
B. Bundle of Rights included in Ownership
NCC 428. The owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law.
The owner has also a right of action against the holder and possessor of
the thing in order to recover it.
C. Other Specific Rights
NCC 429. The owner or lawful possessor of a thing has the right to
23

exclude any person from the enjoyment and disposal thereof. For this
purpose, he may use such force as may be reasonably necessary to repel
or prevent an actual or threatened unlawful physical invasion or usurpation
of his property. (n)
NCC 430. Every owner may enclose or fence his land or tenements by
means of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon.
NCC 437. The owner of a parcel of land is the owner of its surface and of
everything under it, and he can construct thereon any works or make any
plantations and excavations which he may deem proper, without detriment
to servitudes and subject to special laws and ordinances. He cannot
complain of the reasonable requirements of aerial navigation. (350a)
NCC 438 Hidden treasure belongs to the owner of the land, building, or
other property on which it is found.
Nevertheless, when the discovery is made on the property of another, or of
the State or any of its subdivisions, and by chance, one-half thereof shall
be allowed to the finder. If the finder is a trespasser, he shall not be
entitled to any share of the treasure.
If the things found be of interest to science or the State may acquire them
at their just price, which shall be divided in conformity with the rule stated.
NCC 444. Only such as are manifest or born are considered as natural or
industrial fruits.
With respect to animals, it is sufficient that they are in the womb of the
mother, although unborn.
II. Contract Law
A. In General
Essential Requisites of Contracts
NCC 1318. There is no contract unless the following requisites concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
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(3) Cause of the obligation which is established. (1261)
Form of Contracts
a.) New Civil Code
Article 1356. Contracts shall be obligatory, in whatever form they may
have been entered into, provided all the essential requisites for their
validity are present. However, when the law requires that a contract be in
some form in order that it may be valid or enforceable, or that a contract
be proved in a certain way, that requirement is absolute and
indispensable. In such cases, the right of the parties stated in the following
article cannot be exercised. (1278a)
Article 1357. If the law requires a document or other special form, as in
the acts and contracts enumerated in the following article, the contracting
parties may compel each other to observe that form, once the contract has
been perfected. This right may be exercised simultaneously with the action
upon the contract. (1279a)
Article 1358. The following must appear in a public document:
(1) Acts and contracts which have for their object the creation,
transmission, modification or extinguishment of real rights over
immovable property; sales of real property or of an interest therein are
governed by articles 1403, No. 2, and 1405;
(2) The cession, repudiation or renunciation of hereditary rights or of those
of the conjugal partnership of gains;
(3) The power to administer property, or any other power which has for its
object an act appearing or which should appear in a public document,
or should prejudice a third person;
(4) The cession of actions or rights proceeding from an act appearing in a
public document.
All other contracts where the amount involved exceeds five hundred pesos
must appear in writing, even a private one. But sales of goods, chattels or
things in action are governed by articles, 1403, No. 2 and 1405. (1280a)
Article 1370. If the terms of a contract are clear and leave no doubt upon
the intention of the contracting parties, the literal meaning of its stipulations
shall control.
24

If the words appear to be contrary to the evident intention of the parties,
the latter shall prevail over the former. (1281)
Article 1371. In order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally considered.
(1282)
Article 1372. However general the terms of a contract may be, they shall
not be understood to comprehend things that are distinct and cases that
are different from those upon which the parties intended to agree. (1283)
Article 1373. If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is most
adequate to render it effectual. (1284)
Article 1374. The various stipulations of a contract shall be interpreted
together, attributing to the doubtful ones that sense which may result from
all of them taken jointly. (1285)
Article 1375. Words which may have different significations shall be
understood in that which is most in keeping with the nature and object of
the contract. (1286)
Article 1376. The usage or custom of the place shall be borne in mind in
the interpretation of the ambiguities of a contract, and shall fill the omission
of stipulations which are ordinarily established. (1287)
Article 1377. The interpretation of obscure words or stipulations in a
contract shall not favor the party who caused the obscurity. (1288)
Article 1378. When it is absolutely impossible to settle doubts by the rules
established in the preceding articles, and the doubts refer to incidental
circumstances of a gratuitous contract, the least transmission of rights and
interests shall prevail. If the contract is onerous, the doubt shall be settled
in favor of the greatest reciprocity of interests.
If the doubts are cast upon the principal object of the contract in such a
way that it cannot be known what may have been the intention or will of
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the parties, the contract shall be null and void. (1289)
Article 1379. The principles of interpretation stated in Rule 123 of the
Rules of Court shall likewise be observed in the construction of contracts.
(n)
b.) PD 1529
Section 51. Conveyance and other dealings by registered owner. An
owner of registered land may convey, mortgage, lease, charge or
otherwise deal with the same in accordance with existing laws. He may
use such forms of deeds, mortgages, leases or other voluntary
instruments as are sufficient in law. But no deed, mortgage, lease, or other
voluntary instrument, except a will purporting to convey or affect registered
land shall take effect as a conveyance or bind the land, but shall operate
only as a contract between the parties and as evidence of authority to the
Register of Deeds to make registration.
The act of registration shall be the operative act to convey or affect the
land insofar as third persons are concerned, and in all cases under this
Decree, the registration shall be made in the office of the Register of
Deeds for the province or city where the land lies.
Section 52. Constructive notice upon registration. Every conveyance,
mortgage, lease, lien, attachment, order, judgment, instrument or entry
affecting registered land shall, if registered, filed or entered in the office of
the Register of Deeds for the province or city where the land to which it
relates lies, be constructive notice to all persons from the time of such
registering, filing or entering.
Section 53. Presentation of owner's duplicate upon entry of new
certificate. No voluntary instrument shall be registered by the Register of
Deeds, unless the owner's duplicate certificate is presented with such
instrument, except in cases expressly provided for in this Decree or upon
order of the court, for cause shown.
The production of the owner's duplicate certificate, whenever any voluntary
instrument is presented for registration, shall be conclusive authority from
the registered owner to the Register of Deeds to enter a new certificate or
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to make a memorandum of registration in accordance with such
instrument, and the new certificate or memorandum shall be binding upon
the registered owner and upon all persons claiming under him, in favor of
every purchaser for value and in good faith.
In all cases of registration procured by fraud, the owner may pursue all his
legal and equitable remedies against the parties to such fraud without
prejudice, however, to the rights of any innocent holder for value of a
certificate of title. After the entry of the decree of registration on the original
petition or application, any subsequent registration procured by the
presentation of a forged duplicate certificate of title, or a forged deed or
other instrument, shall be null and void.
Section 54. Dealings less than ownership, how registered. No new
certificate shall be entered or issued pursuant to any instrument which
does not divest the ownership or title from the owner or from the transferee
of the registered owners. All interests in registered land less than
ownership shall be registered by filing with the Register of Deeds the
instrument which creates or transfers or claims such interests and by a
brief memorandum thereof made by the Register of Deeds upon the
certificate of title, and signed by him. A similar memorandum shall also be
made on the owner's duplicate. The cancellation or extinguishment of such
interests shall be registered in the same manner.
Section 55. Grantee's name, nationality, etc., to be stated. Every deed or
other voluntary instrument presented for registration shall contain or have
endorsed upon it the full name, nationality, residence and postal address
of the grantee or other person acquiring or claiming an interest under such
instrument, and every deed shall also state whether the grantee is married
or unmarried, and if married, the name in full of the husband or wife. If the
grantee is a corporation or association, the instrument must contain a
recital to show that such corporation or association is legally qualified to
acquire private lands. Any change in the residence or postal address of
such person shall be endorsed by the Register of Deeds on the original
copy of the corresponding certificate of title, upon receiving a sworn
statement of such change. All names and addresses shall also be entered
on all certificates.
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Notices and processed issued in relation to registered land in pursuance of
this Decree may be served upon any person in interest by mailing the
same to the addresses given, and shall be binding, whether such person
resides within or without the Philippines, but the court may, in its
discretion, require further or other notice to be given in any case, if in its
opinion the interest of justice so requires.
Section 57. Procedure in registration of conveyances. An owner desiring
to convey his registered land in fee simple shall execute and register a
deed of conveyance in a form sufficient in law. The Register of Deeds shall
thereafter make out in the registration book a new certificate of title to the
grantee and shall prepare and deliver to him an owner's duplicate
certificate. The Register of Deeds shall note upon the original and
duplicate certificate the date of transfer, the volume and page of the
registration book in which the new certificate is registered and a reference
by number to the last preceding certificate. The original and the owner's
duplicate of the grantor's certificate shall be stamped "canceled". The deed
of conveyance shall be filled and indorsed with the number and the place
of registration of the certificate of title of the land conveyed.
Section 58. Procedure where conveyance involves portion of land. If a
deed or conveyance is for a part only of the land described in a certificate
of title, the Register of Deeds shall not enter any transfer certificate to the
grantee until a plan of such land showing all the portions or lots into which
it has been subdivided and the corresponding technical descriptions shall
have been verified and approved pursuant to Section 50 of this Decree.
Meanwhile, such deed may only be annotated by way of memorandum
upon the grantor's certificate of title, original and duplicate, said
memorandum to serve as a notice to third persons of the fact that certain
unsegregated portion of the land described therein has been conveyed,
and every certificate with such memorandum shall be effectual for the
purpose of showing the grantee's title to the portion conveyed to him,
pending the actual issuance of the corresponding certificate in his name.
Upon the approval of the plan and technical descriptions, the original of
the plan, together with a certified copy of the technical descriptions shall
be filed with the Register of Deeds for annotation in the corresponding
certificate of title and thereupon said officer shall issue a new certificate of
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title to the grantee for the portion conveyed, and at the same time cancel
the grantor's certificate partially with respect only to said portion conveyed,
or, if the grantor so desires, his certificate may be canceled totally and a
new one issued to him describing therein the remaining portion: Provided,
however, that pending approval of said plan, no further registration or
annotation of any subsequent deed or other voluntary instrument involving
the unsegregated portion conveyed shall be effected by the Register of
Deeds, except where such unsegregated portion was purchased from the
Government or any of its instrumentalities. If the land has been subdivided
into several lots, designated by numbers or letters, the Register of Deeds
may, if desired by the grantor, instead of canceling the latter's certificate
and issuing a new one to the same for the remaining unconveyed lots,
enter on said certificate and on its owner's duplicate a memorandum of
such deed of conveyance and of the issuance of the transfer certificate to
the grantee for the lot or lots thus conveyed, and that the grantor's
certificate is canceled as to such lot or lots.
c.) Proper Format
Naranja Family v. CA, G.R. No. 160132, April 17, 2009
To be valid, a contract of sale need not contain a technical description of the
subject property. Contracts of sale of real property have no prescribed form
for their validity; they follow the general rule on contracts that they may be
entered into in whatever form, provided all the essential requisites for their
validity are present.
The requisites of a valid contract of sale under NCC 1458 are:
(1) consent or meeting of the minds;
(2) determinate subject matter; and
(3) price certain in money or its equivalent.
4. Reformation of Contracts
NCC 1359. When, there having been a meeting of the minds of the parties
to a contract, their true intention is not expressed in the instrument
purporting to embody the agreement, by reason of mistake, fraud,
inequitable conduct or accident, one of the parties may ask for the
reformation of the instrument to the end that such true intention may be
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expressed.
If mistake, fraud, inequitable conduct, or accident has prevented a meeting
of the minds of the parties, the proper remedy is not reformation of the
instrument but annulment of the contract.
NCC 1360. The principles of the general law on the reformation of
instruments are hereby adopted insofar as they are not in conflict with the
provisions of this Code.
NCC 1361. When a mutual mistake of the parties causes the failure of the
instrument to disclose their real agreement, said instrument may be
reformed.
NCC 1362. If one party was mistaken and the other acted fraudulently or
inequitably in such a way that the instrument does not show their true
intention, the former may ask for the reformation of the instrument.
NCC 1363. When one party was mistaken and the other knew or believed
that the instrument did not state their real agreement, but concealed that
fact from the former, the instrument may be reformed.
NCC 1364. When through the ignorance, lack of skill, negligence or bad
faith on the part of the person drafting the instrument or of the clerk or
typist, the instrument does not express the true intention of the parties, the
courts may order that the instrument be reformed.
NCC 1365. If two parties agree upon the mortgage or pledge of real or
personal property, but the instrument states that the property is sold
absolutely or with a right of repurchase, reformation of the instrument is
proper.
NCC 1366. There shall be no reformation in the following cases:
(1) Simple donations inter vivos wherein no condition is imposed;
(2) Wills;
(3) When the real agreement is void.
NCC 1367. When one of the parties has brought an action to enforce the
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instrument, he cannot subsequently ask for its reformation.
NCC 1368. Reformation may be ordered at the instance of either party or
his successors in interest, if the mistake was mutual; otherwise, upon
petition of the injured party, or his heirs and assigns.
NCC 1369. The procedure for the reformation of instrument shall be
governed by rules of court to be promulgated by the Supreme Court.
RULE 63
Declaratory Relief and Similar Remedies
Section 1. Who may file petition. — Any person interested under a deed,
will, contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof bring an
action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties,
thereunder.
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unconstitutional, the Solicitor General shall also be notified and entitled to
be heard. (4a, R64)
Section 5. Court action discretionary. — Except in actions falling under
the second paragraph of section 1 of this Rule, the court, motu proprio or
upon motion, may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not terminate the
uncertainty or controversy which gave rise to the action, or in any case
where the declaration or construction is not necessary and proper under
the circumstances. (5a, R64)
Section 6. Conversion into ordinary action. — If before the final
termination of the case, a breach or violation of an instrument or a statute,
executive order or regulation, ordinance, or any other governmental
regulation should take place, the action may thereupon be converted into
an ordinary action, and the parties shall be allowed to file such pleadings
as may be necessary or proper.

An action for the reformation of an instrument, to quiet title to real property

or remove clouds therefrom, or to consolidate ownership under Article
1607 of the Civil Code, may be brought under this Rule. (1a, R64)

Section 2. Parties. — All persons who have or claim any interest which
would be affected by the declaration shall be made parties; and no
declaration shall, except as otherwise provided in these Rules, prejudice
the rights of persons not parties to the action. (2a, R64)

Section 3. Notice on Solicitor General. — In any action which involves the

validity of a statute, executive order or regulation, or any other
governmental regulation, the Solicitor General shall be notified by the party
assailing the same and shall be entitled to be heard upon such question.
(3a, R64)

Section 4. Local government ordinances. — In any action involving the

validity of a local government ordinance, the corresponding prosecutor or
attorney of the local governmental unit involved shall be similarly notified
and entitled to be heard. If such ordinance is alleged to be

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5. Interpretation of Contracts
SEE NCC 1370-1379, supra
Catungal v. Rodriguez, G.R. No. 146839, March 23, 2011
A basic rule in the interpretation of contracts is that the contract should be
taken as a whole. NCC 1374 provides that “[t]he various stipulations of a
contract shall be interpreted together, attributing to the doubtful ones that
sense which may result from all of them taken jointly.” Furthermore, “[i]f
some stipulation of any contract should admit of several meanings, it shall be
understood as bearing that import which is most adequate to render it
effectual.”
Similarly, under the ROC it is prescribed that “[i]n the construction of an
instrument where there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to all” and “for the
proper construction of an instrument, the circumstances under which it was
made, including the situation of the subject thereof and of the parties to it,
may be shown, so that the judge may be placed in the position of those
whose language he is to interpret.”
Victorias Planters Association v. Victorias Milling Co., G. R. No. L-6648,
July 25, 1955
FACTS: Petitioner sugar planters and the respondent central company
entered into milling contract whereby they stipulated a 30-year period within
which the sugar cane produced by the sugar planters would be milled by the
company. The parties also stipulated that in the event of force majeure, the
contract shall be deemed suspended during said period. The sugar planters
failed to deliver sugar cane during the 4 years of the Japanese occupation
and the 2 years after liberation when the mill was being rebuilt or a total of 6
years.
The company is now claiming that the sugar planters should deliver sugar
cane for 6 more years. It contends that the term stipulated in the contracts is
30 milling years and not 30 calendar years.
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HELD: The period in the contract should be interpreted as 30 calendar years.
Fortuitous events relieve the obligor from fulfilling a contractual obligation.
The stipulation in the contract that in the event of force majeure the contract
shall be deemed suspended during said period does not mean that the
happening of any of those events stops the running of the period agreed
upon. It only relieves the parties from the fulfillment of their respective
obligations during that time.
To require the petitioners to deliver the sugar cane which they failed to
deliver during the six years is to demand from them the fulfillment of an
obligation which was impossible of performance at the time it became due.
Nemo tenetur ad impossibilia. The performance of what the law has written
off cannot be demanded and required.
b.) Rules of Court
RULE 130
Rules of Admissibility
4. Interpretation Of Documents
Section 10. Interpretation of a writing according to its legal meaning. —
The language of a writing is to be interpreted according to the legal
meaning it bears in the place of its execution, unless the parties intended
otherwise.
Section 11. Instrument construed so as to give effect to all provisions. —
In the construction of an instrument, where there are several provisions or
particulars, such a construction is, if possible, to be adopted as will give
effect to all.
Section 12. Interpretation according to intention; general and particular
provisions. — In the construction of an instrument, the intention of the
parties is to be pursued; and when a general and a particular provision are
inconsistent, the latter is paramount to the former. So a particular intent
will control a general one that is inconsistent with it.
Section 13. Interpretation according to circumstances. — For the proper
construction of an instrument, the circumstances under which it was made,
including the situation of the subject thereof and of the parties to it, may be
shown, so that the judge may be placed in the position of those who
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language he is to interpret. (11)
Section 14. Peculiar signification of terms. — The terms of a writing are
presumed to have been used in their primary and general acceptation, but
evidence is admissible to show that they have a local, technical, or
otherwise peculiar signification, and were so used and understood in the
particular instance, in which case the agreement must be construed
accordingly. (12)
Section 15. Written words control printed. — When an instrument consists
partly of written words and partly of a printed form, and the two are
inconsistent, the former controls the latter. (13)
Section 16. Experts and interpreters to be used in explaining certain
writings. — When the characters in which an instrument is written are
difficult to be deciphered, or the language is not understood by the court,
the evidence of persons skilled in deciphering the characters, or who
understand the language, is admissible to declare the characters or the
meaning of the language. (14)
Section 17. Of Two constructions, which preferred. — When the terms of
an agreement have been intended in a different sense by the different
parties to it, that sense is to prevail against either party in which he
supposed the other understood it, and when different constructions of a
provision are otherwise equally proper, that is to be taken which is the
most favorable to the party in whose favor the provision was made. (15)
Section 18. Construction in favor of natural right. — When an instrument
is equally susceptible of two interpretations, one in favor of natural right
and the other against it, the former is to be adopted. (16)
Section 19. Interpretation according to usage. — An instrument may be
construed according to usage, in order to determine its true character. (17)
in rel to
NCC 1379. The principles of interpretation stated in Rule 123 of the Rules
of Court shall likewise be observed in the construction of contracts.
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Sec. 11 – Licaros v. Gatmaitan, G.R. No. 142838, August 9, 2001
Application of Sec. 11: No clause or provision in the subject MoA is
inconsistent or incompatible with a conventional subrogation. On the other
hand, 2 provisions are inconsistent with a contract of assignment of credit.
Thus, if the court were to interpret the same as one of assignment of credit,
then the stipulations would be rendered inutile and useless. Thus, the
contract must be interpreted as a conventional subrogation.
Sec. 12 – Cañedo v. Kampilan Security and Detective Agency, Inc. G.R.
No. 179326, July 31, 2013
In the construction and interpretation of a document, the intention of the
parties must be pursued. Such intention may be shown by their
contemporaneous and subsequent acts and the other evidence.
Sec. 13 – TSPIC Corporation v. TSPIC Employee’s Union, G.R. No.
163419, February 13, 20081
As a general rule, in the interpretation of a contract, the intention of the
parties is to be pursued. Littera necat spiritus vivificat. An instrument must be
interpreted according to the intention of the parties. It is the duty of the courts
to place a practical and realistic construction upon it, giving due
consideration to the context in which it is negotiated and the purpose which it
is intended to serve. Absurd and illogical interpretations should also be
avoided.
Conflicting provisions should be harmonized to give effect to all. Likewise,
when general and specific provisions are inconsistent, the specific provision
shall be paramount to and govern the general provision.
Sec. 15 – Delos Santos v. Vibar, G.R. No. 150931, July 16, 2008
1 Although this is under Sec. 13, the case only discussed Secs. 11-12.
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When an instrument consists partly of written words and partly of a printed
form, and the two are inconsistent, the former controls the latter. The
rationale for this rule is that the written words are the latest expression of the
will of the parties.
Sec. 17 – Horrigan v. Troika Commercial Inc., G.R. No. 148411,
November 29, 2005.
Application of Sec. 17: There is also no question that the 10% guaranteed
yearly increase of rents provided for in sub-paragraph 2.2 of the sub-lease
agreement is for the benefit of respondent herein, being the sub-lessor of the
premises. As such, any doubt in its interpretation must be interpreted in its
favor.
6. Statute of Frauds and the Parole Evidence Rule
NCC 1403. The following contracts are unenforceable, unless they are
ratified:
(1) Those entered into in the name of another person by one who has
been given no authority or legal representation, or who has acted
beyond his powers;
(2) Those that do not comply with the Statute of Frauds as set forth in this
number. In the following cases an agreement hereafter made shall be
unenforceable by action, unless the same, or some note or
memorandum, thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement cannot
be received without the writing, or a secondary evidence of its
contents:
(a) An agreement that by its terms is not to be performed within a
year from the making thereof;
(b) A special promise to answer for the debt, default, or miscarriage of
another;
(c) An agreement made in consideration of marriage, other than a
mutual promise to marry;
(d) An agreement for the sale of goods, chattels or things in action, at
a price not less than five hundred pesos, unless the buyer accept
and receive part of such goods and chattels, or the evidences, or
some of them, of such things in action or pay at the time some
part of the purchase money; but when a sale is made by auction
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and entry is made by the auctioneer in his sales book, at the time
of the sale, of the amount and kind of property sold, terms of sale,
price, names of the purchasers and person on whose account the
sale is made, it is a sufficient memorandum;
(e) An agreement for the leasing for a longer period than one year, or
for the sale of real property or of an interest therein;
(f) A representation as to the credit of a third person.
(3) Those where both parties are incapable of giving consent to a
contract.
ROC 130, Sec. 9. Evidence of written agreements. — When the terms of
an agreement have been reduced to writing, it is considered as containing
all the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents
of the written agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The term "agreement" includes wills. (7a)
Republic v. Roque Jr., G.R. No. 203610, October 10, 2016
The parol evidence rule under Sec. 9 of Rule 130 forbids any addition to the
terms of a written agreement by testimony showing that the parties orally
agreed on other terms before the signing of the document.
Caranillo v. People, G.R. No. 182424, September 22, 2014
The agreement or contract between the parties is the formal expression of
the parties’ rights, duties, and obligations and is the best evidence of the
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parties’ intention. Thus, when the terms of an agreement have been reduced
into writing, it is considered as containing all the terms agreed upon and
there can be, between the parties and their successors-in-interest, no
evidence of such terms other than the contents of the written agreement.
However, this rule, known as the Parol Evidence Rule, admits of exceptions,
as enumerated in Rule 130, Sec. 9.
Usual Documents and Practical Exercises
 Contract to Sell
 Deed of Conditional Sale
 Deed of Absolute Sale
 Contract of Lease
B. Specific Types of Contracts
1. Sale
NCC 1458. By the contract of sale one of the contracting parties obligates
himself to transfer the ownership and to deliver a determinate thing, and
the other to pay therefor a price certain in money or its equivalent.
A contract of sale may be absolute or conditional. (1445a)
NCC 1495. The vendor is bound to transfer the ownership of and deliver,
as well as warrant the thing which is the object of the sale. (1461a)
NCC 1164. The creditor has a right to the fruits of the thing from the time
the obligation to deliver it arises. However, he shall acquire no real right
over it until the same has been delivered to him. (1095)
Danguilan v. IAC, G.R. No. L-69970, Nov. 28, 1988
A contract of sale is consummated by actual delivery of the properties to the
buyer and his actual possession thereof in concept of purchaser-owner.
Ownership does not pass by mere stipulation but only by delivery.
Generally, the execution of a public instrument is equivalent to the delivery of
the thing which is the object of the contract. However, in order that this
symbolic delivery may produce the effect of tradition, it is necessary that the
vendor shall have had such control over the thing sold that, at the moment of
the sale, its material delivery could have been made. It is not enough to
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confer upon the purchaser the ownership and the right of possession. The
thing sold must be placed in his control. Thus, the execution of a public
document does not constitute sufficient delivery where the property involved
is in the actual and adverse possession of third persons.
C. Validity of Contracts with respect to Notarization
1. General Rule: A defective notarization does not affect the validity
of
a contract.
Chong v. Court of Appeals, G.R. No. 148280, July 10, 2007
The defective notarization of the deed does not affect the validity of the sale
of real property. Although NCC 1358 states that the sale of real property
must appear in a public instrument, the formalities required by this article is
not essential for the validity of the contract but is simply for its greater
efficacy or convenience, or to bind third persons, and is merely a coercive
means granted to the contracting parties to enable them to reciprocally
compel the observance of the prescribed form. Consequently, the private
conveyance of the house is valid between the parties.
2. Exception: Where the law requires notarization as a requisite for
validity.
a.) Donation of immovable property.
NCC 749. In order that the donation of an immovable may be valid, it must
be made in a public document, specifying therein the property donated
and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a
separate public document, but it shall not take effect unless it is done
during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be
notified thereof in an authentic form, and this step shall be noted in both
instruments.
Quilala v. Alcantara, G.R. No. 132681. December 3, 2001; 371 SCRA 311
(2001)
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The lack of an acknowledgment by the donee before the notary public does
not render the donation null and void.2
Abellana v. Spouses Ponce, G.R. No. 160488, September 3, 2004; 437
SCRA 531 (2004)
Unlike ordinary contracts, which are perfected by the concurrence of the
requisites of consent, object and cause pursuant to NCC 1318, solemn
contracts like donations are perfected only upon compliance with the legal
formalities under NCC 748 and 749. Otherwise stated, absent the solemnity
requirements for validity, the mere intention of the parties does not give rise
to a contract.
b.) Partnership where immovable is contributed.
NCC 1771. A partnership may be constituted in any form, except where
immovable property or real rights are contributed thereto, in which case a
public instrument shall be necessary. (1667a)
NCC 1772. Every contract of partnership having a capital of three
thousand pesos or more, in money or property, shall appear in a public
instrument, which must be recorded in the Office of the Securities and
Exchange Commission.
Failure to comply with the requirements of the preceding paragraph shall
not affect the liability of the partnership and the members thereof to third
persons. (n)
NCC 1773. A contract of partnership is void, whenever immovable
property is contributed thereto, if an inventory of said property is not made,
signed by the parties, and attached to the public instrument.
c.) Notarial Will.
NCC 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
2 NOTE: In this case, the donor acknowledged the donation
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The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them. (n)
NCC 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.
d.) Registration of Documents.
PD 1529, Sec. 112. Forms in conveyancing. The Commissioner of Land
Registration shall prepare convenient blank forms as may be necessary to
help facilitate the proceedings in land registration and shall take charge of
the printing of land title forms.
Deeds, conveyances, encumbrances, discharges, powers of attorney and
other voluntary instruments, whether affecting registered or unregistered
land, executed in accordance with law in the form of public instruments
shall be registerable: Provided, that, every such instrument shall be signed
by the person or persons executing the same in the presence of at least
two witnesses who shall likewise sign thereon, and shall acknowledged to
be the free act and deed of the person or persons executing the same
before a notary public or other public officer authorized by law to take
acknowledgment. Where the instrument so acknowledged consists of two
or more pages including the page whereon acknowledgment is written,
each page of the copy which is to be registered in the office of the Register
of Deeds, or if registration is not contemplated, each page of the copy to
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be kept by the notary public, except the page where the signatures already
appear at the foot of the instrument, shall be signed on the left margin
thereof by the person or persons executing the instrument and their
witnesses, and all the ages sealed with the notarial seal, and this fact as
well as the number of pages shall be stated in the acknowledgment.
Where the instrument acknowledged relates to a sale, transfer, mortgage
or encumbrance of two or more parcels of land, the number thereof shall
likewise be set forth in said acknowledgment.
e.) Transfer of Ownership.
NCC 1498. When the sale is made through a public instrument, the
execution thereof shall be equivalent to the delivery of the thing which is
the object of the contract, if from the deed the contrary does not appear or
cannot clearly be inferred.
With regard to movable property, its delivery may also be made by the
delivery of the keys of the place or depository where it is stored or kept.
NCC 1544. If the same thing should have been sold to different vendees,
the ownership shall be transferred to the person who may have first taken
possession thereof in good faith, if it should be movable property.
Should it be immovable property, the ownership shall belong to the person
acquiring it who in good faith first recorded it in the Registry of Property.
Should there be no inscription, the ownership shall pertain to the person
who in good faith was first in the possession; and, in the absence thereof,
to the person who presents the oldest title, provided there is good faith.
Dy, Jr. v. Court of Appeals, G.R. No. 92989, July 8, 1991; 198 SCRA 826
(1991)
Application of NCC 1498: In the instant case, actual delivery of the subject
tractor could not be made. However, there was constructive delivery already
upon the execution of the public instrument pursuant to NCC 1498. The sale
of the subject tractor was thus consummated upon the execution of the
public instrument.
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f.) Effectivity as against Third Persons.
(i) Assignment of credits.
NCC 1625. An assignment of a credit, right or action shall produce no
effect as against third persons, unless it appears in a public instrument, or
the instrument is recorded in the Registry of Property in case the
assignment involves real property.
Santiago v. Pioneer Savings and Loan Bank, G.R. No. 77502, January
15, 1988; 157 SCRA 100 (1968)
A mortgage credit may be alienated or assigned to a third person, in whole or
in part, with the formalities required by law.
RULING: The assignment of the mortgage credit was valid since the
formalities were complied with. The assignment was made in a public
instrument and proper recording in the Registry of Property was made. While
notice may not have been given to plaintiff-appellant personally, the
publication of the Notice of Sheriff’s Sale, as required by law, is notice to the
whole world.
(ii) Partnership having a capital of Php 3,000.00 or more.
NCC 1772. Every contract of partnership having a capital of three
thousand pesos or more, in money or property, shall appear in a public
instrument, which must be recorded in the Office of the Securities and
Exchange Commission.
Failure to comply with the requirements of the preceding paragraph shall
not affect the liability of the partnership and the members thereof to third
persons
(iii) Marriage settlements. Family Code – Art. 77
FC 77. The marriage settlements and any modification thereof shall be in
writing, signed by the parties and executed before the celebration of the
marriage. They shall not prejudice third persons unless they are registered
in the local civil registry where the marriage contract is recorded as well as
in the proper registries of properties.
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Usual Documents and Practical Exercises Donations and Wills
 Deed of Sale with Mortgage
 Deed of Sale with Assumption of Mortgage I. Law on Donations and Wills
 Deed of Assignment A. Donations
 Deed of Real Estate Mortgage (REM) 1. Definition, Essential Elements, Acceptance, Classification
 Deed of Chattel Mortgage According to Time of Effectivity.
 Clause inserted in REM granting Mortgage Special Power to Sell NCC 725. Donation is an act of liberality whereby a person disposes
 Release of Mortgage gratuitously of a thing or right in favor of another, who accepts it. (618a)

NCC 726. When a person gives to another a thing or right on account of

the latter's merits or of the services rendered by him to the donor, provided
they do not constitute a demandable debt, or when the gift imposes upon
the donee a burden which is less than the value of the thing given, there is
also a donation. (619)

NCC 727. Illegal or impossible conditions in simple and remuneratory

donations shall be considered as not imposed. (n)

NCC 728. Donations which are to take effect upon the death of the donor
partake of the nature of testamentary provisions, and shall be governed by
the rules established in the Title on Succession. (620)

NCC 729. When the donor intends that the donation shall take effect
during the lifetime of the donor, though the property shall not be delivered
till after the donor's death, this shall be a donation inter vivos. The fruits of
the property from the time of the acceptance of the donation, shall pertain
to the donee, unless the donor provides otherwise. (n)

NCC 730. The fixing of an event or the imposition of a suspensive

condition, which may take place beyond the natural expectation of life of
the donor, does not destroy the nature of the act as a donation inter vivos,
unless a contrary intention appears. (n)

NCC 731. When a person donates something, subject to the resolutory

condition of the donor's survival, there is a donation inter vivos. (n)

NCC 732. Donations which are to take effect inter vivos shall be governed
by the general provisions on contracts and obligations in all that is not

35

determined in this Title. (621)
NCC 733. Donations with an onerous cause shall be governed by the rules
on contracts and remuneratory donations by the provisions of the present
Title as regards that portion which exceeds the value of the burden
imposed.
NCC 734. The donation is perfected from the moment the donor knows of
the acceptance by the donee. (623)
NCC 745. The donee must accept the donation personally, or through an
authorized person with a special power for the purpose, or with a general
and sufficient power; otherwise, the donation shall be void. (630)
2. Form of Donations.
a.) In General.
NCC 748. The donation of a movable may be made orally or in writing.
An oral donation requires the simultaneous delivery of the thing or of the
document representing the right donated.
If the value of the personal property donated exceeds five thousand pesos,
the donation and the acceptance shall be made in writing. Otherwise, the
donation shall be void. (632a)
NCC 749. In order that the donation of an immovable may be valid, it must
be made in a public document, specifying therein the property donated
and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a
separate public document, but it shall not take effect unless it is done
during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be
notified thereof in an authentic form, and this step shall be noted in both
instruments. (633)
Republic of the Philippines v. Silim and Mangubat G.R. No. 140487,
April 2, 2001
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The purpose of the formal requirement for acceptance of a donation is to
ensure that such acceptance is duly communicated to the donor.
RULING: In the case at bar, a school building was immediately constructed
after the donation was executed. Respondents [the donors] had knowledge
of the existence of the school building put up on the donated lot through the
efforts of the Parents-Teachers Association of Barangay Kauswagan. The
actual knowledge by respondents of the construction and existence of the
school building fulfilled the legal requirement that the acceptance of the
donation by the donee be communicated to the donor.
Ang Yu Asuncion v. CA, G.R. No. 109125, December 2, 1994
The perfection of the contract takes place upon the concurrence of the
essential elements thereof. In a solemn contract, compliance with certain
formalities prescribed by law, such as in a donation of real property, is
essential in order to make the act valid, the prescribed form being thereby an
essential element thereof.
Dauden-Hernaez v. De Los Angeles, G.R. No. L-27010, April 30, 1969
It is a general rule that the form (oral or written) is irrelevant to the binding
effect inter partes of a contract. An exception under NCC 1356 are contracts
for which the law itself requires that they be in some particular form (writing)
in order to make them valid and enforceable (the so-called solemn
contracts).
Of these the typical example is the donation of immovable property that the
law (NCC 749) requires to be embodied in a public instrument in order “that
the donation may be valid”, i.e., existing or binding. Other instances are the
donation of movables worth more than P5,000.00 which must be in writing,
“otherwise the donation shall be void” (NCC 748).
b.) Movables and Immovables.
Legasto v. Versoza, 54 Phil. 766 (1930)
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The gift of realty made in a public instrument is null and void when the deed
fails to show the acceptance, or where the formal notice of the acceptance,
made in a separate instrument, is either not given to the donor or else not
noted in the deed of gift and in the separate acceptance.
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Pajarillo v. IAC, G.R. No. 72908, August 11, 1989
The purpose of the formal requirement [of notice of acceptance] is to insure
that the acceptance of the donation is duly communicated to the donor.3
RULING: In the case at bar, it is not even suggested that Juana (the donor)
was unaware of the acceptance for she in fact confirmed it later and
requested that the donated land be not registered during her lifetime by
Salud. Given this significant evidence, the Court cannot in conscience
declare the donation ineffective because there is no notation in the
extrajudicial settlement of the donee’s acceptance. That would be placing too
much stress on mere form over substance. It would also disregard the clear
reality of the acceptance of the donation as manifested in the separate
instrument, and as later acknowledged by Juana.
3. Prohibited Donations.
NCC 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
4. By Local Government Units.
Local Government Code. Sec. 23. Authority to Negotiate and Secure
Grants. - Local chief executives may, upon authority of the sanggunian,
negotiate and secure financial grants or donations in kind, in support of the
basic services or facilities enumerated under Section 17 hereof, from local
and foreign assistance agencies without necessity of securing clearance
or approval therefor from any department, agency, or office of the national
government or from any higher local government unit: Provided, That
projects financed by such grants or assistance with national security
implications shall be approved by the national agency concerned:
Provided, further, That when such national agency fails to act on the
3 This doctrine was applied in Republic of the Philippines v. Silim and Mangubat, supra
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request for approval within thirty (30) days from receipt thereof, the same
shall be deemed approved.
The local chief executive shall, within thirty (30) days upon signing of such
grant agreement or deed of donation, report the nature, amount, and terms
of such assistance to both Houses of Congress and the President.
B. Wills
1. Characteristics of Wills
2. Construction and Interpretation.
NCC 788. If a testamentary disposition admits of different interpretations,
in case of doubt, that interpretation by which the disposition is to be
operative shall be preferred. (n)
NCC 789. When there is an imperfect description, or when no person or
property exactly answers the description, mistakes and omissions must be
corrected, if the error appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator as to his intention;
and when an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral declarations.
NCC 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another sense
can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless
the context clearly indicates a contrary intention, or unless it satisfactorily
appears that the will was drawn solely by the testator, and that he was
unacquainted with such technical sense. (675a)
NCC 791. The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of interpreting a will,
that is to be preferred which will prevent intestacy. (n)
NCC 792. The invalidity of one of several dispositions contained in a will
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does not result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other dispositions if
the first invalid disposition had not been made. (n)
NCC 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the will,
should it expressly appear by the will that such was his intention. (n)
NCC 794. Every devise or legacy shall cover all the interest which the
testator could device or bequeath in the property disposed of, unless it
clearly appears from the will that he intended to convey a less interest. (n)
Rabadilla v. CA, G.R. 113725, June 29, 2000, 334 SCRA 522
In the interpretation of Wills, when an uncertainty arises on the face of the
Will, as to the application of any of its provisions, the testator’s intention is to
be ascertained from the words of the Will, taking into consideration the
circumstances under which it was made. Such construction as will sustain
and uphold the Will in all its parts must be adopted.
Seangio v. Reyes, G.R. Nos. 140371-72, November 27, 2006, 508 SCRA
177
The intent or the will of the testator, expressed in the form and within the
limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect
to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect.
Holographic wills, therefore, being usually prepared by one who is not
learned in the law should be construed more liberally than the ones drawn by
an expert, taking into account the circumstances surrounding the execution
of the instrument and the intention of the testator.
RULING: In this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana4, was intended by Segundo
4 The only provision in the instrument was the disinheritance of a compulsory heir.
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to be his last testamentary act and was executed by him in accordance with
law in the form of a holographic will.
Dizon-Rivera v. Dizon, G.R. No. L-24561, June 30, 1970
The testator's wishes and intention constitute the first and principal law in the
matter of testaments, and when expressed clearly and precisely in his last
will amount to the only law whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs and devisees and
legatees, and neither these interested parties nor the courts may substitute
their own criterion for the testator's wiIl.
RULING: The repeated use of the words "I bequeath" in the testamentary
dispositions acquire no legal significance, such as to convert the same into
devises to be taken solely from the free one-half disposable portion of the
estate where the testator's intent that his testamentary dispositions were by
way of adjudications to the beneficiaries as heirs and not as mere devisees,
is clear and that said dispositions were borne out by the use of phrase "my
heirs in this testament" referring to the "devisees."
3. Kinds of Wills
a.) Notarial Will.
NCC 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
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witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them. (n)
NCC 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.(n)
b.) Holographic Will.
NCC 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need
not be witnessed. (678, 688a)
NCC 811. In the probate of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of
the testator. If the will is contested, at least three of such witnesses shall
be required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deem it necessary, expert testimony may be
resorted to. (619a)
NCC 812. In holographic wills, the dispositions of the testator written below
his signature must be dated and signed by him in order to make them valid
as testamentary dispositions. (n)
NCC 813. When a number of dispositions appearing in a holographic will
are signed without being dated, and the last disposition has a signature
and a date, such date validates the dispositions preceding it, whatever be
the time of prior dispositions. (n)
NCC 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature. (n)
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Lee v. Tambago, A.C. No. 5281, February 12, 2008
A notarial will is required by law to be subscribed at the end thereof by the
testator himself. In addition, it should be attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another. A
notarial will attested by only two witnesses is void.
Likewise, a will must be acknowledged before a notary public by the testator
and the witnesses. The importance of this requirement is highlighted by the
fact that it was segregated from the other requirements under NCC 805 and
embodied in a distinct and separate provision.
An acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or deed.
It involves an extra step undertaken whereby the signatory actually declares
to the notary public that the same is his or her own free act and deed. The
acknowledgment in a notarial will has a two-fold purpose:
(1) to safeguard the testator’s wishes long after his demise and
(2) to assure that his estate is administered in the manner that he intends it
to be done.
Azuela v. Court of Appeals, G.R. No. 122880, April 12, 2006; 487 SCRA
119
On substantial compliance under NCC 8095 in rel to. NCC 805
An omission which can be supplied by an examination of the will itself,
without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.
5 Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.
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Thus, a failure by the attestation clause to state that the testator signed every
page can be liberally construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to state that the
witnesses signed in one another’s presence should be considered a fatal
flaw since the attestation is the only textual guarantee of compliance.
On failure to state the number of pages in the will
Furthermore, the failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw, despite NCC 809.
The purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or
decrease in the pages. The failure to state the number of pages equates with
the absence of an averment on the part of the instrumental witnesses as to
how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Nevertheless, there is
substantial compliance with this requirement if the will states elsewhere in it
how many pages it is comprised of.
On the distinction between subscription and attestation
The signatures on the left-hand corner of every page signify, among others,
that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that
the witnesses are referring to the statements contained in the attestation
clause itself. Indeed, the attestation clause is separate and apart from the
disposition of the will. An unsigned attestation clause results in an unattested
will. Even if the instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly
different avowal.
On the importance of the attestation clause
It is the attestation clause which contains the utterances reduced into writing
of the testamentary witnesses themselves. It is the witnesses, and not the
testator, who are required under Article 805 to state the number of pages
used upon which the will is written; the fact that the testator had signed the
will and every page thereof; and that they witnessed and signed the will and
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all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause.
On the purpose of acknowledgement
The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of
the testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to
declare before an officer of the law that they had executed and subscribed to
the will as their own free act or deed. Such declaration is under oath and
under pain of perjury, thus allowing for the criminal prosecution of persons
who participate in the execution of spurious wills, or those executed without
the free consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the will.
A notarial will that is not acknowledged before a notary public by the testator
and the witnesses is fatally defective, even if it is subscribed and sworn to
before a notary public.
Garcia v. Gatchalian, G.R. No. L-20357, November 25, 1967; 21 SCRA
1056
Compliance with the requirement contained in NCC 806 to the effect that a
will must be acknowledged before a notary public by the testator and also by
the witnesses is indispensable for its validity.
RULING: An examination of the document shows that the same was
acknowledged before a notary public by the testator, but not by the
instrumental witnesses. As said document does not comply with the
requirement contained in NCC 806, it is obvious that the same may not be
probated.
4. Disinheritance
NCC 915. A compulsory heir may, in consequence of disinheritance, be
deprived of his legitime, for causes expressly stated by law. (848a)
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NCC 916. Disinheritance can be effected only through a will wherein the
legal cause therefor shall be specified. (849)
NCC 917. The burden of proving the truth of the cause for disinheritance
shall rest upon the other heirs of the testator, if the disinherited heir should
deny it. (850)
NCC 918. Disinheritance without a specification of the cause, or for a
cause the truth of which, if contradicted, is not proved, or which is not one
of those set forth in this Code, shall annul the institution of heirs insofar as
it may prejudice the person disinherited; but the devises and legacies and
other testamentary dispositions shall be valid to such extent as will not
impair the legitime. (851a)
NCC 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants;
(2) When a child or descendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already
made;
(5) A refusal without justifiable cause to support the parent or ascendant
who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction. (756, 853, 674a)
NCC 920. The following shall be sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced their
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daughters to live a corrupt or immoral life, or attempted against their
virtue;
(2) When the parent or ascendant has been convicted of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants;
(3) When the parent or ascendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or
concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change one
already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without justifiable
cause;
(8) An attempt by one of the parents against the life of the other, unless
there has been a reconciliation between them. (756, 854, 674a)
NCC 921. The following shall be sufficient causes for disinheriting a
spouse:
(1) When the spouse has been convicted of an attempt against the life of
the testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which the
law prescribes imprisonment of six years or more, and the accusation
has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence
cause the testator to make a will or to change one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental authority;
(6) Unjustifiable refusal to support the children or the other spouse. (756,
855, 674a)
NCC 922. A subsequent reconciliation between the offender and the
offended person deprives the latter of the right to disinherit, and renders
ineffectual any disinheritance that may have been made. (856)
NCC 923. The children and descendants of the person disinherited shall
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take his or her place and shall preserve the rights of compulsory heirs with
respect to the legitime; but the disinherited parent shall not have the
usufruct or administration of the property which constitutes the legitime.
(857)
Seangio v. Reyes, supra
For disinheritance to be valid, NCC 916 requires that the same must be
effected through a will wherein the legal cause therefor shall be specified.
Unless the will is probated, disinheritance cannot be given effect.
With regard to the reasons for the disinheritance, maltreatment of a parent by
a child presents a sufficient cause for the disinheritance of the latter.
The disinheritance of an heir is an act of disposition in itself. In other words,
the disinheritance results in the disposition of the property of the testator in
favor of those who would succeed in the absence of the disinherited heir.
5. Succession for Muslim Filipinos. PD 1083 or the Code of Muslim
Personal Laws. Title II Chapter One (see Arabani)
Article 101. Will defined. A will (wasiya) is a declaration whereby a person
is permitted, with the formalities prescribed by law, to control the
disposition after his death of not more than one-third of his estate, if there
are heirs, or the whole of it, if there are no heirs or distant kindred.
Article 102. Formalities.
(1) The making of a will is strictly a personal act; it cannot be left in whole
or in part to the discretion of a third person or accomplished through
the instrumentality of an agent.
(2) A will may be declared orally or in writing in a manner that shows
clearly the intention of the testator to execute it in the presence of a
least two competent, credible and disinterested witnesses.
Article 103. Proof of will.
(1) No nuncupative will shall pass any property of the decedent unless it is
proved and allowed in accordance with a solemn oath or affirmation of
all the witnesses who attested to its declaration.
(2) No will of any other kind, holographic or formal, shall pass any
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 LegForms G02 | 2018-19 | Cal Clemente
property unless it is proved and allowed in accordance with this Code.

Article 104. Testamentary wagf. An endowment for Islamic purposes to

take effect after the death of the donor (wagf-bill-wasiya) partakes of the
nature of a testamentary disposition.

Article 105. Capacity to make a will. Any person of sound and disposing
mind and who is not expressly prohibited by Islamic law may make a will.
Persons of either sex under the age of puberty cannot make a will.

Article 106. Disposable third.

(1) The testator, in his will, cannot dispose of more than one-third of his
estate. Any bequest in excess thereof shall not be given effect unless
ratified by the heirs. In any case, the bequest must be accepted by the
legatee.
(2) A bequest to any sharer or residuary shall not be valid unless ratified
by the testator's heirs existing at the time of his death.

Article 107. Bequest by operation of law. Should the testator die without
having made a bequest in favor of any child of his son who predeceased
him, or who simultaneously dies with him, such child shall be entitled to
one-third of the share that would have pertained to the father if he were
alive. The parent or spouse, who is otherwise disqualified to inherit in view
of Article 93 (c), shall be entitled to one-third of what he or she would have
received without such qualification.

Article 108. Revocation of will. Will may be expressly or impliedly revoked

by the testator at any time before his death. Any waiver or restriction of
this right shall be void.

Article 109. Partial invalidity of will. The invalidity of one of several

provisions of a will shall not result in the invalidity of the others, unless it is
to be presumed that the testator would not have made such other
provisions if the first invalid provision had not been made.

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