ARTICLE

1358
 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;

 
 ARTICLE 1358

3. The power to administer property, or any other pow
er 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 a
n act appearing in a public document. 

All other contracts where the amount involved exceed
s 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)
 EXPLANATION

The contracts covered by this article are valid and enforceabl
e though not embodied in a public document or instrument or
in writing. The public document is required only for the
convenience and greater protection of the parties and
registration is needed only to make the contract effective as
against third persons. 

In other words, the law does not require accomplishment of c
ertain acts or contracts in a public instrument in order to
validate the act or contract but only to insure its efficacy so
that after the existence of the act or contract has been
admitted or established, the party bound may be compelled
to execute the document.
 EXPLANATION

Formal requirements are, therefore, for the benefit of third parties
for the purpose of informing as well as binding them. Non-
compliance therewith does not adversely affect the validity of the
contract nor the contractual rights and obligations of the parties
thereunder.

Incidentally, a public document or instrument is one which is

acknowledged before a notary public or any official authorized to
administer oath, by the person who executed the same. The party
making the acknowledgment formally declares that the instrument
is his free act and deed while the officer taking the same attests
and certifies that such party is known to him and that he is the
same person who executed the instrument and acknowledged that
the instrument is his free act and deed.  Any other instrument is
private. 
 EXPLANATION

A private document, however, acquires the character of
a public document when it becomes part of an official
record and is certified by a public officer duly
authorized by law. 
 PROBATIVE VALUE OF PUBLIC DOCUMENTS

The effect of the notarization of a private document is to
convert the said document into a public one and renders it
admissible in evidence in court without further proof of its
authenticity and due execution.

Public documents are entitled to full faith and credit on their
face in the absence of any clear and convincing evidence,
more than merely preponderant, that their execution was
tainted by defects or irregularities that would warrant a
declaration of nullity. One who denies the due execution of a
deed where one’s signature appears, has the burden of
proving that, contrary to the recital in the jurat ,
one never appeared before the notary public and
acknowledged the deed to be a voluntary act.
 PROBATIVE VALUE OF PUBLIC DOCUMENTS

They enjoy the presumption of validity and regularity. It 
is not, however, the intention nor the function of the
notary public to validate and make binding an
instrument never, in the first place, intended to have
any binding legal effect upon the parties thereto. The
presumption is not absolute and, as stated above, may
be rebutted by clear and convincing, not merely
preponderant, evidence to the contrary. Furthermore,
notarization per se is not a guarantee of the validity of
the contents of a document.
 EXAMPLE

Creation, etc. of real rights over immovable property. — As

security for his debt, R mortgaged his land to E. This mortgage
must appear in a public document. The extinguishment of the
mortgage, upon payment of the debt by R, must likewise
appear in a public document. Sales of real property or an
interest therein are governed by the Statute of Frauds.

Cession or renunciation of hereditary rights or of those of

conjugal partnership of gains. — S and D are the heirs of F,
their deceased father. S, being financially stable, renounces
his share in the inheritance. This renunciation must appear in
a public instrument.
 
 EXAMPLE

Power to administer property. —P is leaving for the

United States to study for two (2) years. He appoints A
to manage his property. In this case, the authority of A
to administer the property of P must appear in a public
document.
 
Cession of actions or rights. — R mortgaged his land to
E to secure the payment of a debt. This mortgage
appears in a public document. The cession by E of his
right, as mortgagee, to T, must also be in a public
document.
 ACTION TO COMPEL EXECUTION OF
CONTRACT IN PUBLIC INSTRUMENT

Under Article 1357, the parties may compel each other to have
 thecontract reduced in proper form and the action may be
filed simultaneously with the suit to enforce the contract. But
the latter action may be brought without the bringing of the
former.

The reduction to writing in a public or private document, requi
red by the law with respect to certain contracts, is not an
essential requisite of their existence, but is simply a coercive
power granted to the contracting parties by which they can
reciprocally compel the observance of these formal requisites.
The contract can be enforced even if it may not be in writing.
But before the contract can be reduced in proper form or
enforced, it may be necessary to prove its existence.
 LEGAL RECOGNITION OF
ELECTRONIC DATA
MESSAGES AND ELECTRONIC DOCU
MENTS

 R.A. No. 8792, otherwise known as the “Electronic Commerce Act (June 14,

2000) gives legal recognition to any kind of electronic data message and
electronic document used in the context of commercial and non-commercial
activities to include domestic and international dealings, transactions,
arrangements, agreements, contracts and ex-changes and storage of
information.

1. Electronic data message  — Information shall not be denied validity or

enforceability solely on the ground that it is in the form of an electronic
data message purporting to give rise to such legal effect, or that it is
merely incorporated by reference in that electronic data message.
 
2. Electronic documents — Electronic documents shall have the legal effect,
validity or enforceability as any other document or legal writing, and —
 LEGAL RECOGNITION OF
ELECTRONIC DATA
MESSAGES AND ELECTRONIC DOCU
MENTS

 
A. Where the law requires a document to be in writing, that
requirement is met by an electronic document if the said electronic
document maintains its integrity and reliability and can be
authenticated so as to be usable for subsequent reference, in that —
i. The electronic document has remained complete and unaltered,
apart from the addition of any endorsement and any authorized
change, or any change which arises in the normal course of
communication, storage and display; and 
ii. The electronic document is reliable in the light of the purpose
for which it was generated and in the light of all relevant
circumstances.
B. Paragraph (a) applies whether the requirement therein is in the
form of an obligation or whether the law simply provides consequences
for the document not being presented or retained in its original
form.
 LEGAL RECOGNITION OF
ELECTRONIC DATA
MESSAGES AND ELECTRONIC DOCU
MENTS

  C. Where the law requires that a document be presented or
retained in its original form, that requirement is met by an electronic
document if —
i. There exists a reliable assurance as to the integrity of
the document from the time when it was first generated in its final form,
and 
ii. That document is capable of being displayed to the person
to whom it is to be presented. For evidentiary purposes, an
electronic document shall be the functional equivalent of a written
document under existing laws.
The Act dose not modify any statutory rule relating to the admissibility of
electronic data messages or electronic documents except the rules relating to
authentication and best evidence; nor shall it apply to vary any and all
requirements of existing laws on formalities required in the execution of
documents for their validity.
 LEGAL RECOGNITION OF
ELECTRONIC DATA
MESSAGES AND ELECTRONIC DOCU
MENTS

3. Variation by agreement.  — As between parties involved in generating,

sending, receiving, storing or otherwise processing electronic data message
or electronic document, any provision of the Act may be varied by agreement
between and among them.