Notarial Law

Atutubo Sugcang Tago

PURPOSE OF THE NOTARIAL LAW

To

promote, serve and protect public interest; To simplify, clarify and modernize the rules governing notaries public; and To foster ethical conduct among notaries public (Sec. 2, Rule I, 2004 Rules on Notarial Practice)

BASES OF NOTARIAL RULES

Notarization

is not an empty, meaningless, routinary act. On the contrary, it is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. (St. Louis University vs. Atty. Rolando dela Cruz, A.C No. 6010, August 28, 2006)

NOTARY PUBLIC
A

notary public is an individual authorized by state or local government to officially witness signatures on legal documents, collect sworn statements and administer oaths.

FUNCTIONS OF A NOTARY PUBLIC

The

principal function of a notary public is to authenticate documents. When a notary public certifies to the due execution and delivery of a document under his hand and seal, he gives the document the force of evidence. (Felicidad Vda. de Bernardo vs. Atty. Restuaro, A.C No. 3849, June 25, 2003) The function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public were one of the signatories to the instrument. For then, he would be interested in sustaining the validity thereof as it

NATURE OF NOTARY PUBLIC

A

notary public must be classified as a civil officer. A notary public, in exercising the ordinary functions of his office, is deemed to act in a ministerial character, rather than judicial capacity, and not to be a judicial officer. His position is a public office but he is not an officer of the Insular Government. (People vs. Carreon, 65 Phil. 588)

QUALIFICATIONS OF NOTARY PUBLIC

A

citizen of the Philippines; Over twenty-one (21) years of age; A resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued; A member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and Must not have been convicted in the first instance of any crime involving moral turpitude. (Sec. 1, Rule III, 2004 Rules on Notarial Practice)

PROCEDURE TO BECOME A NOTARY PUBLIC

1.Submit

a petition to the Executive Judge stating the aforementioned qualifications. 2.Executive Judge shall conduct a summary hearing. 3.Notice of summary hearing - published in a newspaper of general circulation in the city or province where the hearing shall be conducted and posted in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court. 4.Written opposition by any party must be filed before the scheduled hearing. 5.grant the petition if:

JUDGES AS NOTARY PUBLIC EX OFFICIO

Circular

No. 1-90, dated Feb. 26, 1990 provides that Municipal Trial Court and Municipal Circuit Trial Court Judges are empowered to perform the functions of notaries public ex officio. LIMITATION: documents connected only with the exercise of their official functions and duties. They may not undertake the preparation and acknowledgement of private documents, contracts and other acts of conveyances which bear no direct relation to the performances of their function as judges. (Borre vs. Moya, A.M No. 1765-CFI, Oct. 17,

EXCEPTION TO LIMITATION OF JUDGES AS NOTARY PUBLIC EX OFFICIO

Municipalities

which have neither lawyers nor notaries public - MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notary public ex officio, perform any act within the competency of a regular notary public, provided that:

all notarial fees charged be for the account of the Government and turned over to the municipal treasurer; and certification be made in notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.

CLERKS OF COURTS AS NOTARY PUBLIC EX OFFICIO

Clerks

of Court are notaries public ex-officio, and may thus notarize documents or administer oaths but only when the matter is related to the exercise of their official functions. Clerks of court should not in their ex-officio capacity take part in the execution of private documents bearing no relation at all to their official functions. (Astorga vs. Solas, A.M. No. P-01-1484, July 17, 2001)

Effect of instrument acknowledged before a person who is not a notary public

The

fact that the alleged deed of sale was signed before an unauthorized party who had no appointment as Notary Public converted the document into a mere private instrument. (Barretto vs. Cabrera, 33 Phil. 112)

JURISDICTION AND TERM

A

person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of Court. (Sec. 11, Rule III, 2004 Rules on Notarial Practice)

May a lawyer notarize documents beyond the territorial jurisdiction of the commissioning court that issued his commission?
NO.

The Supreme Court, thru an en banc decision rendered on June 29, 2009 additionally imposed the penalty of revoking the lawyers notarial commission and disqualified him from discharging duties as a notary public for an additional period of two years. The act of notarizing documents outside ones area of commission xxx partakes of malpractice of law and falsification. xxx

Notarial Act must be within his Regular place of business; Exception

A

notary public shall not perform a notarial act outside his regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction:

public offices, convention halls, and similar places where oaths of office may be administered; public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; hospitals and other medical institutions where a

Can a judge who has already retired be punished for notarizing documents without a commission prior to his appointment as judge?
The

retirement or resignation of a judge will not preclude the filing thereafter of an administrative charge against him for which he shall still be held answerable if found guilty. It is settled that a judge may be disciplined for acts committed prior to his appointment to the judiciary and that an administrative complaint against a member of the BAR does not prescribe. (Heinz Heck vs. Judge Santos, A.M. No. RTJ-01-

Violation of Notarial Law = Violation of Code of Professional Responsibility

Where

the notarization of a document is done by a member of the Philippine Bar at the time when he has no authorization or commission to do so, the offender may be subjected to disciplinary action. For one, performing a notarial act without such commission is a violation of the lawyers oath to obey the laws, more specifically the Notarial Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate falsehood.

The

Court has characterized a lawyers act of notarizing documents without the requisite commission therefore as reprehensible, constituting as it does not only malpactrice but also x x x the crime of falsification of public documents. (Zoreta vs. Simpliciano, A.C. No. 6492, November 18, 2004, 443 SCRA 1)

RENEWAL OF COMMISSION
Within

forty-five (45) days before expiration, file a written application with the Executive Judge. A mark, image or impression of the seal of the notary public shall be attached to the application. (Sec. 13, Rule III, 2004 Rules on Notarial Practice) The Executive Judge shall, upon payment of the application fee, act on an application for the renewal of a commission within thirty (30) days from receipt thereof. If the application is denied, the Executive Judge shall state the reasons therefor.

Powers and limitations of a notary public

POWERS:

A notary public is empowered to perform the following notarial acts: (1) acknowledgments; (2) oaths and affirmations; (3) jurats; (4) signature witnessing; (5) copy certifications; (6) any other act authorized by these Rules.(section 1, Rule IV, Ibid)

Any other act authorized by these Rules;(Section 1, Rule IV,)

A

notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if:
(1) the thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document;

Any other act authorized by these Rules;(section 1, Rule IV,)

(2) both witnesses sign their own names in addition to the thumb or other mark; (3) the notary public writes below the thumb or other mark: "Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public";

Any other act authorized by these Rules;(Section 1, Rule IV,)

(4) the notary public notarizes the signature by thumb or other mark through an acknowledgment, jurats, or signature witnessing.

Any other act authorized by these Rules;(Section 1, Rule IV,)

(c)

A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if:

(1) the notary public is directed by the person unable to sign or make a mark to sign on his behalf; (2) the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or document;

Any other act authorized by these Rules

3) both witnesses sign their own names ;

(4) the notary public writes below his signature: Signature affixed by notary in presence of (names and addresses of person and two [2] witnesses);

(5) the notary public notarizes his signature by acknowledgment or jurat.

Acknowledgments
SECTION

1. Acknowledgment. Acknowledgment refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents an integrally complete instrument or document;

(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and -

Acknowledgments
(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity. (Rule II Section I A.M. No. 02-813-SC)

A jurat is a distinct creature from an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed; while a jurat is that part of an affidavit where the officer certifies that the same was sworn before him (Tigno vs SPS aquino)

Competent evidence of Identity

A.M. No. 02-8-13-SC February 19, 2008

Rule

II DEFINITIONS "Sec. 12. Component Evidence of Identity. The phrase "competent evidence of identity" refers to the identification of an individual based on: (a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to:

Competent evidence of Identity

A.M. No. 02-8-13-SC February 19, 2008

Passport,

drivers license, Professional Regulations Commission ID National Bureau of Investigation clearance Police clearance postal ID Voters ID Barangay certification Government Service and Insurance System (GSIS) e-card Social Security System (SSS) card Philhealth card Senior citizen card Overseas Workers Welfare Administration (OWWA)

Competent evidence of Identity

A.M. No. 02-8-13-SC
(b)

JULY 5, 2004

the oath or affirmation of once credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witness neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.

Example of ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES ) CITY OF CEBU ) S.s.
BEFORE ME A NOTARY PUBLIC, for the City of Cebu, personally came and appeared JUAN DELA CRUZ, whose identity is proven by his Non-Professional Drivers License No. 12345 valid until September 2009 and presented his CTC No. 7545 issued on 1/2/15 at Cebu City, Philippines, and who acknowledged to me that the same is his free and voluntary act and deed.

Example of ACKNOWLEDGEMETNT
REPUBLIC OF THE PHILIPPINES ) PROVINCE OF CAGAYAN ) SS MUNICIPALITY OF ENRILE ) BEFORE ME, this 25th day of January, 2009 in the Municipality of Enrile, Province of Cagayan, Philippines, personally appeared PEDRO SILUGNA, with Residence Certificate No. 123456 issued at Enrile, Cagayan, on February 1, 2007, and Taxpayers Identification No. 456789 known to me and to me known to be the same person who executed the foregoing instrument, and he acknowledged to me that the same is his free act and deed. This instrument, consisting of 6 pages, including the page on which this acknowledgment is written, has been signed on the left margin of each and every page thereof by PEDRO SILUGNA and his witnesses, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand, the day, year, and place above written. (SGD)JUAN DELA CRUZ Notary Public for Cagayan 1 Arellano St. Enrile, Cagayan Commission Serial 54321 Until Dec. 31, 2009 Roll No. 0001 P.T.R. No. 0002, 12/31/2009, Cagayan. IBP No. 0003, 12/31/2009, Cagayan. Doc. No. 5;

Affirmation or Oath
Affirmation

or Oath. - The term Affirmation or Oath refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules;

Affirmation or Oath
(c)

avows under penalty of law to the whole truth of the contents of the instrument or document.

Jurat
Jurat.

- Jurat refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents an instrument or document;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules;

Jurat
(c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document. (Sec. VI Rule II Ibid)

Jurat
A jurat which is, normally in this form:
Subscribed and sworn to before me in _______________, this ____ day of ____________, affiant having exhibited to me his Community (before, Residence) Tax Certificate No. ____________ issued at ______________ on ____________.

"is that part of an affidavit in which the officer certifies that the instrument was sworn to before him (Theobald vs. Chicago Ry. Co., 75 Ill. App. 208 cited in BUENAVENTURA vs New Bilibid Prison Officials)

Jurat
It

is not a part of a pleading but merely evidences the fact that the affidavit was properly made (Young vs. Wooden, 265 SW 24, 204 Ky. 694 cited in Buenaventura vs New Bilibid Prisons Officials)

Jurat
Jurat

also begins with the words "subscribed and sworn to me."

To

underneath, as one's name; to sign at the end of a document (Black's Law Dictionary, Fifth ed., 1279).

subscribe literally means to write

swear means to put on oath; to declare on oath the truth of a pleading, etc. (Id., 1298). Accordingly, in a jurat, the affiant must sign the
To

document in the presence of and take his oath before a notary public or any other person

EXAMPLE OF JURAT
SUBSCRIBED

AND SWORN TO BEFORE ME by JUAN DELA CRUZ, who is personally known to me and presented his CTC No. 7545 issued on 1/2/06 at Cebu City, Philippines, and who is the same person who personally signed before me the foregoing affidavit and acknowledged that he executed the same. NOTARY PUBLIC

Signature Witnessing
Signature

Witnessing. - The term signature witnessing refers to a notarial act in which an individual on a single occasion:
a) appears in person before the notary public and presents an instrument or document;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; (c) signs the instrument or document in the presence of the notary public. (Sec. XIV Rule II Ibid)

Copy Certification
Copy

Certification refers to a notarial act in which a notary public:

(a) is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable;

(b) copies or supervises the copying of the instrument or document;

(c) compares the instrument or document with the copy;

(d) determines that the copy is accurate and complete.

PROHIBITED ACTS
A

person shall not perform a notarial act if the person involved as signatory to the instrument or document:

is not in the notary's presence personally at the time of the notarization; and is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

notary public is disqualified from performing a notarial act if he:

(Sec. 3, Rule IV)

is a party to the instrument or document that is to be notarized; will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by these Rules and by law; or is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree.

execute a certificate containing information known or believed by the notary to be false. affix an official signature or seal on a notarial certificate that is incomplete.

notary public shall not:

(Sec. 5, Rule IV; Sec. 6, Rule IV)

a blank or incomplete instrument or document; or an instrument or document without appropriate notarial certification.

notary public shall not notarize:

A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The presence of the parties to the deed will enable the notary public to verify the genuineness of the signature of the affiant. (Victorina Bautista vs. Atty. Sergio Bernabe, A.C. No. 6963, February 9, 2006)

Can a notary public be a witness to a document?

There

is no prohibition for a notary public to witness a document xxx nothing in the law prohibits a notary public from acting at the same time as witness in the document he notarized. The only exception is when the document to be notarized is a will. (Emelita Solarte vs. Atty. Teofilo Pugeda, A.C. No. 4751, July 31, 2000)

REFUSAL TO NOTARIZE
A

notary public shall not perform any notarial act described in these Rules for any person requesting such an act even if he tenders the appropriate fee specified by these Rules if:

(Sec. 4, Rule IV)

the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and in the notary's judgment, the signatory is not acting of his or her own free will.

NOTARIAL FEES
For protests of drafts, bills of exchange, or promissory notes for non-acceptance or nonpayment, and for notice thereof - P100.00; For the registration of such protest and filing or safekeeping of the same - P100.00; For authenticating powers of attorney - P100.00; For sworn statement concerning correctness of any account or other document - P100.00; For each oath of affirmation - P100.00; For receiving evidence of indebtedness to be sent outside - P100.00; For issuing a certified copy of all or part of his notarial register or notarial records - for each page P100.00; For taking depositions - for each page P100.00 ;

Travel

fees and expenses - when traveling to perform a notarial act if the notary public and the person requesting the notarial act agree prior to the travel.

notary public shall not require payment of any fees specified herein prior to the performance of a notarial act unless otherwise agreed upon.

If paid prior to the performance of a notarial act not subject to refund if the notary public had already traveled but failed to complete in whole or in part the notarial act for reasons beyond his control and without negligence on his part.

Can Justice of the peace acting as notary public charge fees? Exception
Yes.

Justice of the Peace, acting as notary public can charge fees for services rendered in accordance with the fees prescribed by law. But a justice of the peace cannot charge fee for services in acknowledging documents regarding crop loans Any justice of the peace, in his capacity as notary public ex officio, shall render free of charge to any person applying for an agricultural or crop loan not exceeding two hundred pesos from the Philippine National Bank either in administering the oath or in the acknowledgement of instruments relative to the

NOTARIAL SEAL
The

Certificate of Authorization to Purchase a Notarial Seal shall be valid for a period of three (3) months from date of issue, unless extended by the Executive Judge. A mark, image or impression of the seal that may be purchased by the notary public pursuant to the Certificate shall be presented to the Executive Judge for approval prior to use. (Sec. 8, Rule III, 2004 Rules on Notarial Practice) It shall be of metal, circular in shape, two inches in diameter, and shall have the name of the city or province and the word Philippines and his own name on the margin and the roll of

VENDORS OF NOTARIAL SEALS

Vendors

or manufacturers may sell notarial seals only when authorized by the Executive Judge. The authorization shall be for a period of four (4) years from date of issuance. He shall not sell to a buyer unless a certified copy of the commission and the Certificate of Authorization to Purchase a Notarial Seal is presented. Only one seal may be sold for each said certificate. (Sec. 4, Rule VII, 2004 Rules on Notarial Practice)

WHEN SEAL NOT NECESSARY

Authentication

of any paper, document, or record signed by a justice of the peace or emanating from his office except when he acts as notary public ex officio. (Sec. 218, Rev. Adm. Code)

LOSS OR DAMAGE OF SEAL

Within

five (5) days the notary public, after informing the appropriate law enforcement agency, shall notify the Executive Judge and in the event of a crime committed, provide a copy or entry number of the appropriate police record. The judge shall cause the publication of such loss or damage to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the city of province where the notary public is commissioned, Thereafter the judge shall issue a new Certificate of Authorization to Purchase a Notarial Seal.

NOTARIAL REGISTER
the

entry number and page number; the date and time of day of the notarial act; the type of notarial act; the title or description of the instrument, document or proceeding; the name and address of each principal; the competent evidence of identity as defined by these Rules if the signatory is not personally known to the notary; the name and address of each credible witness swearing to or affirming the person's identity; the fee charged for the notarial act; the address where the notarization was

Other entries in the Notarial Register are: The reasons and circumstances for not completing a notarial act. The circumstances of any request to inspect or copy an entry in the notarial register The reasons for refusal to allow inspection or copying of a journal entry When the instrument or document is a contract - keep an original copy as part of his records and enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. In case of a protest of any draft, bill of exchange or promissory note - the notary

The

notarial registry is a record of the notary publics official acts. Acknowledged documents and instruments recorded in it are considered public documents. If the document or instrument does not appear in the notarial records and there is no copy of it therein, doubt is engendered that the document or instrument was not really notarized, so that it is not a public document and cannot bolster any claim made based on this document. Considering the evidentiary value given to notarized documents, the failure of the notary public to record the document in his notarial registry is tantamount to falsely making it appear that the document was notarized when in fact it was not. xxx.

May a notary public delegate to his secretary the task of filling up his notarial register?
Considering

that the responsibility attached to a notary public is sensitive respondent should have been more discreet and cautious in the execution of his duties as such and should not have wholly entrusted everything to the secretaries; otherwise he should not have been commissioned as notary public. (Spouses Santuyo Vs. Atty. Edwin A. Hidalgo, A.C. No. 5838. January 17, 2005)

What would be the effect of ante dating?

Atty.

Mateo admitted that although See ChuaGokioco signed and subscribed the civil complaint at an earlier date, he only entered the fact of the signing and subscribing of the said complaint much later, that is, on the date of the filing of the said civil complaint. However the Supreme Court held that the notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledging the instrument. It cannot be stressed enough that notaries public should be truthful in carrying out their functions. They

Inspection of Notarial Register

In

the notary's presence, any person may inspect an entry in the notarial register, during regular business hours, provided;

the person's identity is personally known to the notary public or proven through competent evidence of identity as defined in these Rules; the person affixes a signature and thumb or other mark or other recognized identifier, in the notarial register in a separate, dated entry; the person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and the person is shown only the entry or entries specified by him.

WHEN NOTARY PUBLIC MAY DENY INSPECTION

If

the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein.

LOSS OR DAMAGE OF NOTARIAL REGISTER

Within ten (10) days after informing the appropriate law enforcement agency in the case of theft or vandalism, notify the Executive Judge by any means providing a proper receipt or acknowledgment, including registered mail and also provide a copy or number of any pertinent police report. (Sec. 5, Par. (a), Rule VI)

CHANGE OF STATUS
Within

ten (10) days, the notary public shall submit a signed and dated notice of such fact to the Executive Judge. The notary public shall not notarize until:

The

foregoing notwithstanding, until the aforementioned steps have been completed, the notary public may continue to use the former name or regular place of work or business in

he receives from the Executive Judge a confirmation of the new name of the notary public and/or change of regular place of work or business; and a new seal bearing the new name has been obtained.

REVOCATION OF COMMISSION OF NOTARY PUBLIC

The

Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied; fails to keep a notarial register; fails to make the proper entry or entries in his notarial register concerning his notarial acts; fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; fails to affix to acknowledgments the date of expiration of his commission; fails to submit his notarial register, when filled, to the Executive Judge;

PUNISHABLE ACTS
The executive judge shall cause the prosecution of any person who; Knowingly acts or otherwise impersonates a notary public; Knowingly obtains, conceals, defaces or destroys the seal, notarial register, or official records of notary public; and Knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct. (Sec. 1, Rule XII)