Philippines – Test The Attestation: When Notarization Is Needed.

10 July 2020
 

We received queries in the last few months on whether notarization services are available even during the community quarantine. There is clearly an unending demand for notaries public, but we must clarify as to when notarization is a requirement, and when it should be treated as merely an option in order to not unduly burden a person under the belief that a notary public’s intervention is an absolute must.
 

Notarization it is to certify or attest to a document by a notary public. The 2004 Rules of Notarial Practice provides that a notary public must be a lawyer in good standing and must not have been convicted in the first instance of any crime involving moral turpitude. A notary public must have a notarial commission issued by an Executive Judge of the Regional Trial Court with jurisdiction over the place where the lawyer seeking to become a notary public has his regular place of work or business, where s/he will render notarial services.
 

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

(6) any other act authorized by the Rules.
 

Notarization is not a magic bullet that cures any defect in legal documents, including contracts, such that the same can no longer be questioned on the basis of the seal and signature of the notary public.
 

The challenge comes from misconception about what notarization means. It is generally not a requirement for contracts to be valid and enforceable, except in clearly delineated circumstances discussed below. Under the Civil Code, a contract is valid and binding if all its elements are present, i.e., the elements of consent, object, and cause. Thus, even if the contract is not notarized, it is valid provided these elements are present. There are also documents which at least need to be in writing in order to be enforceable but are not required to appear in public documents or “notarized.”
 

Going back to the question, if not every legal document needs to be notarized, why is there much demand for notarization services? First, a duly notarized document carries with it the presumption of regularity, authenticity, and due execution. It has been the consistent rule that without clear, convincing, and more than preponderant evidence to controvert, the presumption of regularity, the evidentiary weight conferred upon such public document with respect to its execution, as well as the statements and the authenticity of the signatures thereon, stand. Because of this, a notarial document is by law entitled to full faith and credit upon its face. In short, it is a weighty evidence that can be used in case of issues arising from the document.
 

Second, there are certain types of contracts that must appear in a public document. Notarization converts a document to a public document, hence required for the following instances:
 

• 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 a governed by Articles 1403, No. 2, and 1405 of the Civil Code. Examples of these are Contracts to Sell or Deed of Absolute Sale of a piece of land or other real property; Real Estate Mortgage;

• The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains;

• 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 — for example, a special power of attorney to sell land or other real property must appear in a public document; and,

• 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.
 

Third, the demand for notarization comes from internal requirements of certain government and private offices where services are being availed, such as replacement of lost ID or availing of insurance and other benefits
 

While indeed notarization is not required for all types of legal documents, the importance attached to the act of notarization cannot be overemphasized. It is not an empty, meaningless, routinary act but is invested with substantive public interest because it converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. For this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties.
 

 

For further information, please contact:

 

nilo.divina@divinalaw.com