On real contracts at the lawyer’s doorstep

(First of two parts)

“I have no contracts with my clients,” said American talent agent Swifty Lazar. “Just a handshake is enough.”

The same can generally be said for transactions entered into under Philippine jurisdiction. To be sure, contracts shall remain with legal effect, no matter which form they have been entered into, for as long as the parties have validly consented to the object and consideration stated therein, as defined under Philippine law.

But, a contract must be in some form: (a) if the law requires it for its validity; (b) in order to bind persons not parties to that contract; and (c) for the parties to enforce the terms thereof. Thus, the Civil Code requires that contracts appear in a public document when they, among others, create, transmit, modify or extinguish real rights over immovable property. Meanwhile, parties may only enforce the written terms of a contract of sale of immovable property, unless the purchase price has been partly paid.

To convert into a public instrument a contract involving such immovable property is to have it notarized. In this regard, the Supreme Court has consistently held that in notarizing documents, the notary public authenticates them, certifying to the truth thereof under his seal of office. Moreover, the parties who signed or executed the document must personally appear before, and represent to the notary public that they freely and voluntarily signed the document for the purposes stated therein. Thereafter, the notary public notarizes the document by affixing his notarial seal thereon, converting it into a public instrument which on its face, is entitled to full faith and credit.

These being said, the Supreme Court held that notarization is impressed with substantial public interest and not a purposeless ministerial act of acknowledging documents executed by parties who are willing to pay fees for notarization.

Among the cases decided by the Supreme Court, which emphasized the importance of notarization, is Dela Cruz v. Zabala. In this case, Demetrio Marero retained Miniano Dela Cruz as counsel to finance and undertake the filing of a petition for the issuance of a second duplicate original of the owner’s copy of the title to a certain lot.

The lower court granted Marero’s petition, after which he agreed to sell to Dela Cruz the said lot. While this agreement did not result in the transfer of the corresponding title to the name of Dela Cruz, who subsequently discovered that it was already registered under Antipolo Properties Inc., Alejandro Zabala nevertheless notarized a separate deed of sale over the lot, executed by the owners thereof in favor of Dela Cruz and his spouse.

This constrained Marero to file administrative, civil and criminal complaints against Dela Cruz. Supposedly to clear his name, Dela Cruz filed a complaint for disbarment against Zabala, alleging that the latter had notarized an irregular document where one of the parties thereto was already dead, grossly violating his oath as a notary public.

Zabala countered that he complied with the minimum requirements for notarization, such that the purported parties personally appeared before, and presented to him their community tax certificates. Moreover, when he notarized the deed of sale, he allegedly had no way of knowing whether the persons who appeared before him were the real owners of the lot.

The Supreme Court revoked Zabala’s notarial commission and temporarily disqualified him from being commissioned as a notary public. It further held that Zabala was grossly negligent in exercising his duties as notary public.

The function of a notary public is, among others, to guard against any illegal or immoral documents. As such notary public, Zabala should not have notarized the deed of sale or any other document, unless he ascertained the identities of the persons signing before him as the very same persons who executed it and who could attest to the contents and the truth of what were stated therein. These acts of the affiants cannot be delegated because what are stated therein are facts they have personal knowledge of and are personally sworn to. Otherwise, the representatives’ names should appear in that document as the ones who have executed the same.