2004 NOTARIAL LAW

CASES & SALIENT FEATURES

The Notarial Law (cf.

provisions of the Revised
Administrative Code)

A.M. No. 02-8-13-SC (2004

Rules on Notarial Practice)

BASES: 251 of the Revised

Administrative Code
The Notarial Law is explicit on the obligations
and duties of notaries public. They are
required to certify that the party to every
document acknowledged before them has
presented the proper residence certificate (or
exemption from the residence tax); and to
enter its number, place of issue and date as
part of such certification.

BASES: 246 of the Revised

Administrative Code
They are also required to maintain and keep a
notarial register; to enter therein all
instruments notarized by them; and to give
to each instrument executed, sworn to, or
acknowledged before [them] a number
corresponding to the one in [their] register
[and to state therein] the page or pages of
[their] register, on which the same is recorded.

BASES: 249 of the Revised

Administrative
Failure to perform these duties would result in
the revocation of their commission as notaries
public.
See: Protacio v. Mendoza, 395 SCRA 10, 17,
January 13, 2003.

Purpose of the 2004 Notarial Rules

(a)to promote, serve, and protect public interest;
(b)to simplify, clarify, and modernize the rules
governing notaries public; and
(c)to foster ethical conduct among notaries
public.

Who may be a notary public?

(1)must be a citizen of the Philippines;
(2)must be over twenty-one (21) years of age;
(3)must be 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;
(4)must be 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
(5)must not have been convicted in the first instance of
any crime involving moral turpitude. (section 1, Rule 3 AM 02-18-13SC.)

membership in good standing

is a continuing requirement. This means
continued membership and, concomitantly,
payment of annual membership dues in the IBP;
payment of the annual professional tax;
compliance with the mandatory continuing legal
education requirement; faithful observance of the
rules and ethics of the legal profession and being
continually subject to judicial disciplinary control.

Moral turpitude
A phrase used in Criminal Law to describe conduct that is
considered contrary to community standards of justice,
honesty, or good morals. Crimes involving moral turpitude
have an inherent quality of baseness, vileness, or depravity
with respect to a person's duty to another or to society in general.
"Moral turpitude," it has been said, "includes everything which is
done contrary to justice, honesty, modesty, or good
morals." (Bouvier's Law Dictionary, cited by numerous courts.) Although no decision
can be found which has decided the exact question, it cannot
admit of doubt that crimes of this character involve moral
turpitude. The inherent nature of the act is such that it is against
good morals and the accepted rule of right conduct . (Teves v.
COMELEC, G.R. No. 180363, 28 April 2009)

The following is a list, not necessarily complete, of the

crimes
adjudged
to
involve
moral
turpitude:
(Teves

v.

COMELEC,

G.R.

No.

180363,

28

April

1. Abduction with consent

2. Bigamy

14.Violation of BP Bldg. 22

3. Concubinage
4. Smuggling

15.Falsification of Document
16.Intriguing against Hono

5. Rape 17.Violation of the Anti-Fencing Law

6. Estafa through falsification of a document
7. Attempted Bribery
8. Profiteering
9. Robbery

18.Violation of Dangerous Drugs Act of 1972

19.Perjury

20.Forgery

10.Murder, whether consummated or attempted

11.Estafa

21. Direct Bribery

12.Theft 22. Frustrated Homicide

13.Illicit Sexual Relations with a Fellow Worker

2009)

certain crimes not involving moral

turpitude
1) Minor transgressions of the law (i.e., conviction for
speeding)

2) Illegal recruitment
3) Slight physical injuries and carrying of deadly weapon
(Illegal possession of firearms)
4) Indirect Contempt
gambling is a malum prohibitum that is not intrinsically evil
and, thus, is not a crime involving moral turpitude.

Form & contents of petition

Every petition for a notarial commission shall be in writing,
verified, and shall include the following: (a) a statement
containing the petitioners personal qualifications, including
the petitioners date of birth, residence, telephone number,
professional tax receipt, roll of attorneys number and IBP
membership number; (b) certification of good moral
character of the petitioner by at least two (2) executive
officers of the local chapter of the Integrated Bar of the
Philippines where he is applying for commission; (c) proof of
payment for the filing of the petition as required by these
Rules; and (d) three (3) passport-size color photographs with
light background taken within thirty (30) days of the
application. The photograph should not be retouched. The
petitioner shall sign his name at the bottom part of the
photographs. (section 2, Rule 3 Ibid.)

Other matters
Payment of application fee
Hearing of the petition SUMMARY in nature
Notice shall be posted in the designated court
areas and published in a newspaper of general
circulation
Any person who has cause to oppose the
same may file a written opposition

Notaries Public Ex-Officio

See SC Circular 1-190, 26 February 1990
Judges of the Municipal Trial Courts, or Municipal Circuit Trial
Courts, may perform their functions as notaries public ex-officio
only in the notarization of documents connected with
the exercise of their official functions. They may not
undertake the preparation and acknowledgment of private
documents such as deed of pacto de retro sale. x x x Circular
No. 1-90 was very specific when it provided that it is only when
there are no lawyers or notaries public in the municipality, or
circuit, that an MTC and MCTC judge may act as a notary public
provided that, among other things, he issues a certification in
the notarized documents attesting to the lack of any lawyer or
notary public in such municipality or circuit (Villareal v. Diongzon, A.M. No.RTJ99-1520, 22 November 2000).

Appointment of non-lawyers as notary

public
In those places where there are not enough
lawyers, non-lawyers may apply as notaries
public directly with this Court (SC) on a case to
case basis (SC Resolution (en banc) dated 29 October 1985; see also SC Memo
Circular dated 10 October 1974).

Jurisdiction and term of a notary

public
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. (section 11, Rule 3, ibid.)

May the term be renewed?

YES. A notary public may file a written application
with the Executive Judge for the renewal of his
commission within forty-five (45) days before the
expiration thereof. A mark, image or impression of
the seal of the notary public shall be attached to the
application.
Failure to file said application will result in the
deletion of the name of the notary public in the
register of notaries public. The notary public thus
removed from the Register of Notaries Public may
only be reinstated therein after he is issued a new
commission in accordance with these Rules . (section 13,
Rule 3, ibid.)

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 witnessings;
(5)copy certifications; and
(6)any other act authorized by these Rules.(section 1,
Rule IV, ibid. )

AFFIRMATION OR OATH

(Sec. 2)

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; and
c) avows under penalty of law to the whole truth of the
contents of the instrument or document .

JURAT

(Sec. 6)

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;
(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.

EXAMPLE OF JURAT
SUBSCRIBED AND SWORN TO BEFORE ME by MATEO
CABALUNA, who is personally known to me and
presented his Non-Prof. Drivers No. 7545 to expire on 24
November 2017, 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

(Sec. 14)

The term 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; and
(c) signs the instrument or document in the presence of
the notary public.

EXAMPLE OF SIGNATURE
WITNESSING
BEFORE ME, a Notary Public in and for the City of
Dumaguete, this 3rd day of November 2016, personally
appeared PEDRO CRUZ who presented to me ( name of
document) which he voluntarily signed in my presence.
WITNESS MY HAND AND SEAL this___day of November
2016 at Dumaguete City.
NOTARY PUBLIC

COPY CERTIFICATION

(Sec. 4)

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

EXAMPLE OF COPY CERTIFICATION

CERTIFICATION
This is to certify that I was presented with a
______________(name of instrument) which is neither a
vital record, a public record, nor publicly recordable; that
I copied/supervised the copying of the instrument; and
that I compared the copied instrument with the original
copy and I hereby certify that the copy is accurate and
complete.
NOTARY PUBLIC

Nadayag vs. Grageda (09-27-94)

Notarization is not an empty routine. Notarization of
a private document converts such document into a
public one and renders it admissible in court
without further proof of its authenticity. A notary
public should therefore be conscientious in seeing
to it that justice permeated every transaction for
which his services had been engaged, in conformity
with the avowed duties of a worthy member of the
Bar. S/he must fully explain the intricacies and
consequences of the subject transaction.

Function of a notary public

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
directly involves himself and the validity of his
own act, and the very purpose of the
acknowledgment, which is to minimize fraud
would be thwarted. (Villarin vs. Sabate, 09 February 2000)

What constitutes competent evidence

of identity?
(a)at least one current identification document
issued by an official agency bearing the
photograph and signature of the individual; or
(b)the oath or affirmation of one 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 witnesses 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. (section 12 Rule 2
AM 02-18-13-SC)

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;
(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"; and
(4) the notary public notarizes the signature by thumb or other
mark through an acknowledgment, jurat, or signature

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;
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)"; and
5)the notary public notarizes his signature by acknowledgment
or jurat. (ibid.)

Prohibitions
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:
(1) public offices, convention halls, and similar places where oaths
of office may be administered;
(2) public function areas in hotels and similar places for the
signing of instruments or documents requiring notarization;
(3) hospitals and other medical institutions where a party to an
instrument or document is confined for treatment; and
(4) any place where a party to an instrument or document
requiring notarization is under detention.

case: Judge Laquindanum versus

Atty. Nestor Q. Quintana (A.C. No.
7936)
Q: May a lawyer notarize documents beyond the territorial
jurisdiction of the commissioning court that issued his
commission?
Q2: may such lawyer, allow his spouse to do notarial acts in his
absence?
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

Ruling:
The act of notarizing documents outside ones area of
commission is not to be taken lightly. Aside from being a
violation of Sec. 11 of the 2004 Rules on Notarial Practice,
it also partakes of malpractice of law and falsification.
Since the public is deceived into believing that he has
been duly commissioned, it also amounts to indulging in
deliberate falsehood, which the lawyers oath proscribes.
Finally, Atty. Quintana is personally accountable for the
documents that he admitted were signed by his wife. He
cannot relieve himself of liability by passing the blame to
his wife. He is, thus, guilty of violating Canon 9 of the
Code of Professional Responsibility, which requires lawyers
not to directly or indirectly assist in the unauthorized
practice of law.

Other prohibitions
A person shall not perform a notarial act if the
person involved as signatory to the instrument or
document
(1)is not in the notarys presence personally at
the time of the notarization; and
(2)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.

A notary public cannot notarize a

document if s/he:
(a) is a party to the instrument or document that is to be
notarized;
(b) 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
(c) is a spouse, common-law partner, ancestor,
descendant, or relative by affinity or consanguinity of
the principal within the fourth civil degree.

Other prohibited acts

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

Q: May a lawyer notarize a document

(Waiver and Quitclaim) w/o the party
appearing before him?
HELD: acknowledgments must be made before a
notary public who shall certify that the person
acknowledging the instrument is known to him
and that he is the same person who executed it
and acknowledged that the same is his free act
and deed. (Bon vs. Atty. Ziga and Arcangel)

Q: May a lawyer notary public delegate to

his secretary the task of filling up his
notarial register?
HELD: Respondent lawyer is negligent in his practice
of tolerating the secretary of their law office to
handle the aforementioned notarial activities. For
having wholly entrusted the preparation and other
mechanics of the document for notarization to the
secretary there can be a possibility that even the
respondents signature which is the only one left for
him to do can even be done by the secretary or
anybody for that matter. (Santuyo vs. Atty. Hidalgo)

Q: What is the effect if a lawyer

notarizes documents despite the
expiration of his notarial commission?
HELD: where the notarization of a document done
by a member of the Philippine Bar at a time when
he has no authorization or commission to do so,
the offender may be subjected to disciplinary
action and also constitutes a violation of the
lawyers oath to obey the laws, more specifically
the Notarial Law. (SLU vs. Atty. Dela Cruz)

ROSALINDA BERNARDO VDA DE ROSALES,

complainant, vs. ATTY. MARIO G. RAMOS,
respondent A.C. No. 5645. July 2, 2002
The notary public is further enjoined to record in
his notarial registry the necessary information
regarding the document or instrument notarized
and retain a copy of the document presented to
him for acknowledgment and certification
especially when it is a contract . The notarial
registry is a record of the notary public's official
acts. Acknowledged documents and
instruments recorded in it are considered public
documents.

CASE
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.

Affidavit and Acknowledgment

Affidavit
A written statement of facts sworn to by the
person making the statement in the presence of
an officer authorized to administer the oath.
The person makes the affidavit to help establish
or prove a fact. Affidavits are used to prove,
among other things, identity, age, residence,
marital status, and possession of property. They
are also essential part of court motions (de Vries, Legal
Secretarys Complete Handbook, 4th ed., p. 205).

Essentials of an affidavit
1) venue
2) title
3) name of affiant and personal circumstances (age, status, citizenship,
residence/address)
4) averment of oath
5) statement of facts/body
6) signature of affiant (affiant always signs the affidavit, even those that are
written in the third person)
7) Jurat (a clause in an official certificate attesting that the affidavit or
deposition was sworn to at a stated time before an authorized officer; often
referred to as the sworn to clause).
8) signature of the notary
9) notarys seal

what is a scilicet?
To wit; that is to say.
A word used in pleadings and other instruments,
as introductory to a more particular statement
of matters previously mentioned in general
terms (Blacks Law Dictionary, 6 ed.).
th

testimonium clause
The clause with which an instrument closes. It
immediately precedes the signature. It is a
declaration by the parties to the instrument that
their signatures are attached in testimony of the
preceding part of the instrument (de Vries, p. 191, supra.).

Acknowledgment
The act by which a person who executes a legal
instrument declares to an officer, designated by
statute, that he or she is the person who
executed the instrument and that he or she did
so for the purposes stated in the document (de Vries,
p. 198, supra).

two fold functions:

1)to authorize the deed to be given in evidence
without further proof of its execution; and
2)to entitle the document to be recorded.

Essentials
1)venue
2)date of acknowledgment
3)designation of person making
acknowledgment
4)signature and designation of person taking
acknowledgment
5)date of expiration of commission
6)notarys seal

Example of ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
Quezon City

)ss.
ACKNOWLEDGMENT

BEFORE ME, this ____________________, appeared:

Identification
BALTAZAR G. TENGCO
2020.

Phil. Passport No. EC4782840 to expire on 31 July

who have satisfactorily shown to me to be the same person who executed the
foregoing instrument and acknowledged to me to be his free and voluntary act
and deed and sealed with my notarial seal.

Doc. No. _____; Page No. _____;

Book No. _____; Series of 2016.

affidavit vs. acknowledgment

affidavit

a complete instrument w/in

itself
purpose: to prove a fact
sworn to
maker signs an instrument
whether it is a deed, an
affidavit, etc.

acknowledgment
always part of, or an
appendage to another
instrument
declaration by the person
making it that he/she signed
the instrument to w/c the
acknowledgment is attached
not sworn to
the officer signs the
acknowledgment

TRIAL MEMORANDUM
THE PARTIES
STATEMENT OF FACTS
STATEMENT OF ISSUES
ARGUMENTS/DISCUSSION
REFUTATION OF ARGUMENTS

PRAYER/RELIEFS

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