As a lawyer, it is common for clients to request the notarization of documents. Whether in government offices or the private sector, the need for notarization arises frequently for applications, bio data, letters, consents, and various other documents. Clients often inquire about the necessity of notarizing contracts and agreements. Notaries can typically be found in close proximity to government premises, and it is uncommon to find a law office without at least one notary public. Given the prevalence of notarization, it is helpful for readers to have a basic understanding of what it entails and when it is required by law.
According to the Civil Code of the Philippines, certain documents must be in a public document form. This includes acts and contracts involving the creation, transmission, modification, or termination of real property rights, the relinquishment or renunciation of hereditary rights or conjugal partnership of gains, powers concerning property administration or any other act that affects a third party, and the transfer of actions or rights that stem from a public document. Additionally, any contract with an amount exceeding P500 must be in writing, even if it is a private document (Article 1358, Civil Code). Public documents can refer to written official acts, records of authority figures and entities, and documents acknowledged before a notary (excluding wills). Public records of private documents required by law to be registered are also considered public documents (Rule 132, Revised Rules on Evidence). Through notarization, a private document is converted into a public document.
Contracts, agreements, and other writings are valid and legally binding even without notarization, as long as they meet the essential requisites of consent, object or subject matter, and cause. The exception is when specific laws demand that a contract or document be in a particular form for validity and enforceability (Article 1356, Civil Code). For example, contracts falling under certain categories must be in private documents or in writing to be enforceable. These include agreements lasting more than a year, promises to answer for another person’s debt or obligation, agreements made in consideration of marriage (excluding mutual promises to marry), agreements for the sale of goods, chattels, or things in action worth at least P500, leases lasting longer than a year or the sale of real property, and representations concerning the credit of a third person (Article 1403 (2), Civil Code). Furthermore, specific forms are required for contracts such as the sale of immovable property in cases where one party seeks rescission due to non-payment of the agreed price at the agreed time. Notarial wills must also follow the prescribed form and be acknowledged by a notary public. Donations of immovable property should be in a public document stating the property being donated and the charges borne by the recipient. The recipient must accept the donation either in the same document or in another public document. The Maceda Law allows sellers to cancel a contract through notarization if the buyer fails to pay installments after the grace period following a notice of cancellation or a demand for contract rescission (Gloria Ocampo and Teresita Tan v. Land Bank of the Philippines, et al., G.R. No. 164968, July 3, 2009).
For contracts requiring public documents, the involved parties can compel each other to adhere to this form, even after executing the document. In the case of a sale of real property, where the creation, transmission, or termination of real rights over immovable property is involved, the buyer can later require the seller to facilitate notarization of the deed of absolute sale, even if it was initially executed without it (Article 1357, Civil Code).
Although not all contracts and documents need notarization by law, there are benefits and importance associated with notarizing documents. When a document is notarized, it becomes a public document and is treated with a presumption of regularity. This presumption implies that the document is considered properly created and follows standard procedures. The facts stated in the document are given a prima facie presumption of truth. Additionally, the document is presumed to exist and to have been properly executed. This presumption can only be challenged with clear and convincing evidence. Without such evidence, the presumption stands. Moreover, if someone denies the due execution of a document where their signature appears, they bear the burden of proving otherwise. A notarized instrument is admissible as evidence without further proof of its execution and is considered conclusive regarding the truthfulness of its contents. It carries the presumption of regularity (Gloria Ocampo and Teresita Tan v. Land Bank of the Philippines, et al., G.R. No. 164968, July 3, 2009).
Addressing the effect of non-notarization for documents required to be in a public form, the Supreme Court has ruled that the absence of notarization in a deed of sale does not invalidate the transaction. Non-notarization diminishes the evidentiary value of a document to that of a private document. As a private document, proof is necessary to establish its due execution and authenticity. Furthermore, when a document’s notarization carries a defect, the usual clear and convincing evidentiary standard associated with a duly notarized document is abandoned. Instead, the validity of such a document is assessed based on a preponderance of evidence (Diampoc v. Buenaventura, et. al., G.R. No. 200383, March 19, 2018). The court also acknowledged that the requirement for certain documents to be in a public form, as specified in Article 1358 of the Civil Code, is merely for convenience. It is not essential for the document’s validity or enforceability, and the parties can enforce the observance of such form. Private documents can be examined according to the parameters outlined in the Rules of Court, which necessitate proof of due execution and authenticity either through witnesses present during the document’s execution or through evidence of the genuineness of the maker’s signature or handwriting (Manlan v. Beltran, G.R. No. 222530, Oct 16, 2019).
In conclusion, while not all contracts and documents require notarization by law, understanding the purpose and requirements of notarization is beneficial. Notarizing a document converts it into a public document, providing the document with a presumption of regularity. However, the absence of notarization does not invalidate a transaction; it merely reduces the evidentiary value to that of a private document. Private documents must be proven for due execution and authenticity. It is important to comply with specific forms as required by law for certain contracts and documents.
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