You might have encountered the word notary or notaryo quite a few times in your life as a requirement for school or work. If you’re around my age or older, I imagine you also thought about a table with a typewriter under a tree and the words “Notary Public.” Affidavits of Loss are probably the most common documents I’ve drafted and notarized, followed by Lease Contracts, and Deeds of Sale.
What is a Notary, and how is a document notarized? A Notary or a Notary Public is a person who is authorized and commissioned by law to perform official notarial acts. The most common notarial acts are certifying that documents are a true copy, acknowledgments, and jurats. In the Philippines, the most basic requirements of a Notary is that he or she must be a lawyer (member of the Philippine Bar), duly commissioned by the Court to be a Notary (after a Petition is filed and a hearing conducted for the purpose). It’s important to note that not all lawyers are Notaries Public, but all Notaries Public are lawyers. Notarial acts and rules are found in the 2004 Rules of Notarial Practice (A.M. No. 02-8-13-SC).
A document is notarized when, after the party personally appears before a Notary and signs the document, the Notary signs, and affixes their seal on the document, and enters it into the Notarial Register (a book). This Register is then submitted to the RTC Office of the Clerk of Court where the Notary is commissioned every month, together with the duplicate original of the documents notarized.
With the onslaught of the Covid-19 pandemic, the Supreme Court issued rules on remote notarizations (AM 20-07-04-SC) where the personal appearance of the signatory before the notary public is no longer required, as long as there is video evidence of the act of signing and the original signed documents are sent to the notary public via courier. In lieu of personal appearances, the signatories would have to appear via videoconferencing with the notary, who must verify that the documents received via courier are the same documents that the signatories signed.
Effects of Notarization
When any document is notarized, it becomes a public document. This essentially means that the “entire world” is made known that this document exists, that the contents are true, and that the person/s who signed truly signed the same. It makes a document authentic, and binding to third parties.
Does it mean that when a contract is not notarized, it has no valid force and effect? Not necessarily. Remember, a contract exists as long as there is a meeting of the minds between two consenting parties, agreeing on an object, and its consideration. It is fully enforceable as long as the statute of frauds (Art. 1403 of the New Civil Code) is met: that certain types of contracts must be in writing to have full force and effect, like Deeds of Sale of Real Property, among others.
Failure or lack of notarization does not invalidate the transaction or covenants in a contract. This means that if you entered into a loan agreement, in writing, duly signed by you and the other party (debtor or creditor), the contract is generally valid and enforceable even without being notarized. You still need to pay (or get paid) even if the agreement is not notarized. It is still a binding covenant between you and the other person who signed the contract.
The Supreme Court in the case of Menauza vs. Fermin (2014) states that:
“A defective notarization will strip the document of its public character and reduce it to a private instrument. Consequently, 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.”
This means that unnotarized or defectively notarized documents would require proof of due execution and authenticity before they can be admissible as evidence.
Practically speaking, if a Deed of Absolute Sale of Real Property is not notarized, the Register of Deeds will not transfer the registration of ownership of title to the property to the buyer. Yes, it creates the obligation for the buyer to pay the seller for the property, but the transfer will not be completed to the buyer’s advantage unless the deed is notarized.
Another example is a Deed of Sale of Motor Vehicles – while it creates an obligation for the seller to deliver and turn over a vehicle to the buyer for a sum of money, the LTO will not record the sale and issue a new OR/CR under the buyer’s name if the deed is not notarized.
Corporate acts will not be recognized if the Corporate Secretary’s Certification is not notarized: i.e. banks will not open a bank account if the Sec. Cert. authorizing the account opening is not notarized.
If you lose an ID, especially a government issued one, you need to submit a Notarized Affidavit of Loss. The notarization is really you saying “I swear under oath that my ID got lost, I promise, this ain’t a lie.” Without the Affidavit duly notarized, there is nil chance you’ll get a replacement for that lost ID.
These are just a few of the practical and necessary applications and examples of how notarizations are important, and the legal implications of having a document notarized. Make sure to consult a lawyer if a document needs to be notarized, and that your Notary Public is legitimate and duly commissioned before you engage their services.
* The author is a duly commissioned Notary Public in the City of Cebu.