‘Attorney, pa-notarize naman!’
As a lawyer, notarization of documents is a regular request from clients. Whether in government offices or in the private sector, there is no end to applications, bio data, letters, consents, and other documents that need to be notarized. Additionally, clients often seek clarity on whether all contracts and agreements must undergo this process.
Notarial offices have become a familiar sight, often found near government premises, and it is very rare to find a law office without at least one notary public of its own. This ubiquity has made notarization a commonplace practice that most people are already well-acquainted with.
Accordingly, it would be useful for our readers to have some basic knowledge of what notarization means, and when notarizing a document is really necessary or required by law.
The Civil Code of the Philippines provides that the following documents 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
(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 P500 must appear in writing, even a private one. (Article 1358, Civil Code)
The law provides that public documents are:
(a) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country
(b) Documents acknowledged before a notary public except last wills and testaments
(c) Documents that are considered public documents under treaties and conventions
(d) Public records, kept in the Philippines, of private documents required by law to be entered
All other writings are private. (Rule 132, Revised Rules on Evidence)
Accordingly, notarizing a document converts a private document into a public document.
Documents such as contracts, agreements and other writings are legal and valid even when not notarized. The law provides that contracts shall be obligatory in whatever form they may have been entered into, provided that all the essential requisites for their validity which are consent, object or subject matter, and cause or the reason for which the parties have executed the contract are present.
The exception is when the law requires that a contract or document be in some specific form in order that they may be valid or enforceable. (Art. 1356, Civil Code)
The following contracts are required to be in a private document or in writing for the parties to rely on their enforceability: 1) an agreement that is not to be performed within a year from its making 2) a special promise to answer for the debt, default, or miscarriage of another 3) an agreement made in consideration of marriage, other than a mutual promise to marry 4) an agreement for the sale of goods, chattels or things in action, at a price not less than P500 5) an agreement of the leasing for a longer period than one year, or for the sale of real property 6) a representation as to the credit of a third person. (Art. 1403 (2), Civil Code)
Some examples of contracts which must be made in a specific form are:
Sales of immovable property when the other party seeks to rescind the contract for failure to pay the agreed price at the time agreed upon, the rescission is required to be made upon the other party in writing either judicially or by a notarial act.
Notarial wills, as opposed to holographic wills, are also required to be made in the form required by law and acknowledged to be notarized by a notary public.
Donations of immovable property must be made in a public document which clearly specifies the property being donated and the value of the charges that the recipient must satisfy. The recipient must accept the donation in the same document or if in another document, the acceptant must be made in a public document.
The Maceda Law also provides that if the buyer fails to pay the installments after the expiration of the grace period, the seller may cancel the contract after 30 days from receipt by the buyer of the notice of cancellation or the demand for rescission of the contract by a notarial act.
For those required to be contained in a public document, the parties may compel each other to observe that form, even after they have executed the document. For example, in a sale of real property, which involves the creation, transmission or extinguishment of real rights over immovable property, where the seller and buyer have executed the deed of absolute sale but was not notarized, the buyer may later compel the seller to cooperate in having the document notarized. (Art. 1357, Civil Code)
While not all contracts and documents are required by law to be notarized, notarization of documents does have some benefit and importance.
A document that is notarized becomes a public document. This means the document will enjoy the presumption of regularity. This presumption simply means that the document will be treated as having been properly created and in the usual manner. There is a prima facie presumption given to truth of the facts stated in the document. And, the document will carry a conclusive presumption that it exists and has been properly executed.
To overcome the presumption of regularity in the creation of the document and the truth of its contents, there must be presented evidence that is clear and convincing. Absent such evidence, the presumption must be upheld. In addition, one who denies the due execution of a deed where one’s signature appears has the burden of proving that contrary. A notarized instrument is admissible in evidence without further proof of its due execution and is conclusive as to the truthfulness of its contents, and has in its favor the presumption of regularity. (Gloria Ocampo and Teresita Tan v. Land Bank of the Philippines, et al., G.R. No. 164968, July 3, 2009)
Before we end, since the law provides that some documents are required to be contained in a public document, the question would be what would be the effect if such document is not notarized?
The Supreme Court has declared that the absence of notarization of the deed of sale would not invalidate the transaction, as non-notarization merely reduces the evidentiary value of a document to that of a private document.
As a private document, proof is required to establish the due execution and authenticity of the document. Moreover, when there is a defect in the notarization of a document, the clear and convincing evidentiary standard normally attached to a duly-notarized document is dispensed with, and the measure to test the validity of such document is preponderance of evidence. (Diampoc v. Buenaventura, et. al., G.R. No. 200383, March 19, 2018)
The court has also declared that the requirement that certain documents be contained in a public document as provided for in Article 1358 of the Civil Code is only for “convenience”. It is not essential for the validity or enforceability of the document, and the parties can compel each other to observe that form.
Such a private document can be examined under the parameters provided in the Rules of Court, which provide that 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. (Manlan v. Beltran, G.R. No. 222530, Oct 16, 2019)
(The author, Atty. John Philip C. Siao, is a practicing lawyer and founding Partner of Tiongco Siao Bello & Associates Law Offices, teaches law at the MLQU School of Law, and an Arbitrator of the Construction Industry Arbitration Commission of the Philippines. He may be contacted at [email protected]. The views expressed in this article belong to the author alone.)
