2011 Legal Forms

8/4/2019 2011 Legal Forms

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1. The usual commencement of a contract

should be : This Agreement, or AnAgreement, etc. although it is better to state

the particular contract or agreement to be

drafted as This Mortgage, This Contract

of Sale, etc

2. The full names of the parties, their capacity,

civil status, and their residences, should come

next ; Logical order in which parties are to benamed in the document must be observed


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3. The principal or operational clauses of the

document should be stated in separate,numbered paragraphs to facilitate ready

reference.

4. Verbosity should be avoided

5. Specific or technical terms, which have

special meanings in the document should

be especially defined.6. Names of the parties should be repeated,

where the use of pronouns would give rise

to ambiguity


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7. The document should be neat, free from

erasures, interlineations, or suspicious ofalterations.

8. A clause may be inserted at the end of an

agreement that this contract shall extend and bebinding upon the parties thereto, their executors,

administrators, and assigns.

9. The place and date of execution of the document

usually come last, and may be stated thus:

:Signed in the City of Bacolod, Philippines, this

____day of____,2002>


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* Unprinted documents presented to the superiorcourts shall be written on paper of good quality,

12-3/8 inches in length by 8-1/2 inches in width,

leaving a margin at the top and at the left hand

side not less than 1-1/2 inches in width;

reasonable margin at the right side must be

observed.


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Typewritten documents shall be written double-spaced;

only one side of the page shall be written upon.

Papers required by the Rules to be printed shall be

printed with black ink on unglazed paper, with pages 6

inches in width by 9 inches in length in pamphlet form;

the type shall not be printed smaller than 12 point.

Effective October 1, 1974, Records on Appeal and

Briefs required to be filed in printed form by the Rules,

without special authority may be filed in

TYPEWRITTEN OR MIMEOGRAPHED on one side of

good quality paper, 11 x 8-1/2 (letter size) double space.

- 12 copies of Records on Appeal and Briefs filed with

the CA; 2 copies served on adverse parties, same with the

SC


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A. Appointment of Notaries Public

- in the province, appointed by judges of the CFI (nowRTC) of the respective provinces

- term expires after the twoyear period beginning the

1st day of January

B. Qualifications

1. citizen of the Philippines

2. must be over 21 years of age

3.. Admitted to the practice of law or completed and

passed the examination for the office of the justice of

peace or clerk of court or deputy clerk of court for a

period of not less than 2 years.


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C. DISQUALIFICATION

- person convicted of any crime involving moral turpitude.

- municipal judges and clerks of court except as notaries public

ex-officio

* only in connection with the exercise of its official functions and

duties (Borre vs. Mayo, Adm. Matter No. 1765-CFI, Oct 17,

1980 100 SCRA 314)

* may not undertake the preparation and acknowledgment of

private documents, contracts and other acts of conveyances

which bears no direct relation to the performance of their

functions as judges.

* judges prohibited from engaging in the private practice of law

(1989 Code of Judicial Conduct)


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* MTC judges may act as notaries public provided:

1. no lawyer or notaries public competent and available

2. all notarial fees charged be for the account of the Govt.

And turned over to the municipal treasurer

3. certification made in the notarized documents attesting to

the lack of any lawyer or notary public.

D. Functions:

1. To attest and certify with his hand and official seal varions

documents in order to give them authenticity;

2. Take acknowledgment of deeds and other conveyances and

to certify the due execution of the same

3. To perform other official acts, which are conferred to him

by law.


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E. Powers of Notaries Public

. 1. To administer all oaths and affirmations provided for by the

law, in all matters incident to his notarial office, and in the

execution of affidavits, depositions, and other documents

requiring an oath, and

2. To receive the proof or acknowledgment of all writings

relating to commerce or navigation such as deeds, mortgages,

etc.

3. To act as a magistrate, in the writing of affidavits or

depositions, and4. To make declarations and certify the truth thereof under his

seal of office, concerning all matters done by him by virtue

of his office.


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F. Grounds For Revocation of Commission

1. The failure of the Notary to keep a notarial register.

2. The failure of the Notary to make the proper entry or entries

in his notarial register touching his notarial acts in the manner

required by law

3. The failure of the notary to send the copy of the entries to theproper Clerk of Court within the first ten months next

following

4. The failure of the notary to affix in the acknowledgments the

date of his commission as required by law

5. The failure of the notary to forward his notarial register,

when filed to the proper clerk of court


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6. The failure of the notary to make

the proper notation regarding cedulacertificates

7. The failure of a notary to make

report, within a reasonable time, to theproper judge (RTC) concerning the

performance of his duties.

8. Any other dereliction or act which

shall appear to the judge to constitute

cause of removal.


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G.Professional Misconduct of a Notary Public

1. Delivery of blank sheets with notarial seal is

censurable, notary is guilty of malpractice andis liable to either reprimand or suspension

2. An acknowledgment taken outside the

territorial limits of a notary publics jurisdictionis void, notary is without is without official

character

3. Legalization of document containing illegalprovisions is professional misconduct, this may

be a ground for disbarment. (immoral and

disrespectful)


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DISQUALIFICATIONS

1. One who is a party to an instrument, even as agent or

trustee, cannot act as notary public (also, a co-partner)

2. Stockholder in a bank does not disqualify him from

acting officially in a matter where the bank is

interested

3. To pending litigation and to attorneys of record,

taking of affidavits treated as merely irregular

4. Art 22. No notary public can authenticate a contract

which contains a provision in favor, or to which any

of the parties interested is a relative of his within the

fourth civil degree or second of affinity.

5. Art 28. Provisions in favor of relatives of the person

who authenticated the document containing the same,

within the degree previously mentioned, sha;ll have no

effect.


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FORMS

-A MANNER OR METHOD, EIHER REGULATIVE ORPRESCRIPTIVE

- FIXED OR FORMAL WAY OF PROCEEDING

LEGAL FORMS:

model of an instrument or proceeding (Legal), containing the

substance and principal terms to be used in accordance with law.*CONVEYANCING

the art or science of transferring title from one person toanother; includes examination of the alienor of the title andpreparation and execution of the contract transferring title

*AGREEMENT

refers to agreement of parties translated to writing

*DEED iti /i t t d li d d l d


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*DEED -a writing/instrument, delivered and sealed onpaper/parchment; to show proof and to testify to the agreement ofparties whose deeds are contained therein

DEED POLL - deed made by one party only; several parties with

similar interest

INDENTURE- deed made by two or more parties with different interest

*DOCUMENT

A. Public Document authenticated by a notary public and therequired formalities complied with

B. Private Document deed or instrument executed by privatepersons

*AUTHENTICATION - proof of due execution and genuineness

A. Public Document- admissible without further proof

B. Notarial Document acknowledged and ratified by a notarypublic

ACKNOWLEDGMENT


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ACKNOWLEDGMENT

- formal declaration or admission before a notary public by aperson who has executed the instrument, that the instrument is

his act and deed- a proceeding provided by the statute, whereby a person who

has executed an instrument may, by going to to a competentofficer or court and declaring it as his act and deed, entitle it to

be recorded or to be received in evidence without further proof.DISTINGUISH FROM

JURAT simple statement that the instrument was subscribedand sworn to or affirmed before proper officer without furtherstating that it is his act or deed

VERIFICATION - verification as to the contents of theinstrument executed ; acknowledgment only verifies as to thefact of execution.

ATTESTATION t f th thi d h it d th t l


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ATTESTATION: act of the third person who witnessed the actualexecution of an instrument and subscribes his name as witness to thatfact;

PURPOSE OF ACKNOWLEDGMENT: merely evidentiary in character

except that the statute made it essential to the validity of aninstrument admissible to record or evidence.

CONTENTS:

1. Venue/place where acknowledged - Before me a notary publicthis ______ day xxx xxx xxx

2. date

3. certification of party personally appeared before me _______

who executed the instrument xxx xxx4. residence certificate of the current year

5. certificate of execution of voluntary act and deed- whoiacknowledged to me that the same is voluntary act and deed

6. signature and title of the officer; date of commission

STATUTORY PROVISIONS


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STATUTORY PROVISIONS

Sec. 50, Act No. 496- Deed of sale of lands registered underthe Torrens Systems must be in a public instrument.

Art. 749. in order that the donation of an immovable may bevalid, it must be made in a public document, specifying thereinthe proerty donated and the value of the charges which thedonee must satisfy. The acceptance must be made in the same

deed of donation or in a separate public document, but it shall nottake effect unless it is done during the lifetime of the fonor. If theacceptance is made in a separate instrument, the donor shall benotified thereof in an authentic form and this step shall be notedin both instruments

Art. 806. Every will must be acknowledged before a notarypublic by the testator and the witnesses. The notary public shallnot be required to retain a copy of the will, or file another withthe office of the Clerk of Court

AFFIDAVIT t t t i iti d l d t b t b th


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AFFIDAVIT - a statement in writing declared to be true by theparty making it and certified to have been sworn to before himby the officer who takes it

- a written statement under oath taken before an authorizedofficer

WHO MAY MAKE AN AFFIDAVIT?

- a person who has knowledge of the facts

- has the ability to make an oath

FORMAL REQUISITES:

1. Title 2. Venue 3. Body 4. Signature 5. Jurat

ESSENTIAL REQUISITES

1. MUST BE IN WRITING

2. MUST BE UNDER OATH

JURAT


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JURAT

a certificate evidencing the fact that the affidavit was properly made

before a duly authorized officer, to attend and cross examine.

- technically, not a part of the affidavit but merely an evidence of theadministration of an oath

- Must be included in the sense of evidencing various facts as to themaking and taking of the affidavit; without jurat, it will be invalidated

PARTS OF JURAT:

1. Reference to affiant

2. Oath or affirmation of affiant

3. Date and place where oath was taken

4. Residence certificate of affiant

5. Signature of officer 7. Seal of officer

6. Authority of officer 8. Statement of expiry of commission


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JURAT distinguish from DEPOSITION /VERIFIED PLEADING

Jurat

- affidavit is taken ex-parte,voluntarily, without notice

to the other party and

without opportunity forcross-examination

- Must always be under oath

Deposition

- Taken upon notice to theadverse party for the

purpose of enabling him to

cross-examine the personwhose deposition is being

taken

- Verified Pleading is

substantially an affidavit as

it is based not only oninformation and belief but

on knowledge of the facts


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Prosecutors Jurat/ certification

SUBSCRIBED AND SWORN TO beforeme this _____ day of ______________, 2008

at Bacolod City, Philippines. I hereby certifythat I have personally examined the affiant andthat I am fully satisfied that he executed theforegoing Affidavit-Complaint voluntarily and

fully understood all the allegations thereinstated

Administering Officer


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VERIFICATION

I, ANDREW DI, Filipino, single, of legalage, and with residence address at 123 Mariano St.Sampaloc, Manila, after having been duly sworn to inaccordance with the law, hereby depose and state that:1. I am the Manager of BANCO LAS ESCUELAS DE SALLIE,Gonzalez Branch;2. I am the defendant in the above entitled answer;

3. I have caused the preparation by my counsel of saidanswer4. I have read the allegations therein contained, and thatthe same are true and correct of my personal knowledge orbased on authentic records.

FURTHER AFFIANT SAYETH NAUGHT.

IN WITNESS WHEREOF I ha e affi ed m


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IN WITNESS WHEREOF, I have affixed mysignature hereunder on this 5th day of December 2008 atManila.

Affiant

SUBSCRIBED AND SWORN to before me on this5th day of December 2008 at the City of Manila: affiantexhibited to me his SSS ID No. 6549812 issued on July 15,2007 and valid until present.

WITNESS MY HAND AND NOTARIAL SEAL on thedate and at the place above written.

Atty. Katrina P. TanNotary Public for Manila

Commission Serial No. 956784Until December 31, 2009

543 Rose St., Malate, ManilaRoll of Attorney No. 567432

PTR No. 145678 issued at Manilaon July 11, 2003

IBP No. 345211/02/17/05/ManilaDoc. No. 20 ;Page No. 4 ;Book No. V ;

Series of 2008.


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AFFIDAVIT OF GOOD FAITH

We, the undersigned MORTGAGOR AND MORTGAGEEhereby jointly and severally swear that we executed theforegoing Chattel Mortgage in order to secure theindebtedness therein and for no other purpose or

purposes contrary to law.

__________ ____________MORTGAGOR MORTGAGEE


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ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES)_____________________________ ) SS.

BEFORE ME, a Notary Public, this ____________day of ________________,

personally appeared the following:

Name CTC Number Date/Place Issued

(Name of Seller/Vendor) 10000000 February 5, 2008 / Pasay City(Name of Buyer/Vendee) 10000000 January 14, 2008 / Quezon City

This instrument, consisting of ___ page/s, including the page on which thisacknowledgment is written, has been signed on the left margin of each and every pagethereof by the concerned parties and their witnesses, and sealed with my notarial seal.

IN WITNESS WHEREOF, I have hereunto set my hand the day, year and placeabove written.

Notary Public

Doc. No. ........;Page No. .......;Book No. .......;Series of 2008


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PERPETUATION OF TESTIMONYA. To perpetuate is to preserve for future use .Rule 134 governs the procedure on how a party or

witness may preserve his testimony because the person may not be available to personallytestify in Court during the trial of a case in which he may be involved, And therefore thepurpose is prevent the loss or unavailability of the testimony.

B. The depositions are of two kinds:

1). Depositions de bene esse: one filed after a case has already been filed in court , i.e to preservetestimony in danger of being lost before the witness can be examined in court

Examples: a). the witness scheduled to leave abroad with no possibility of returning b). the witnessis so sick and might die

2. Depositions perpetuam rei memoriam: one taken in anticipation of a case not yet filed in court

C. The requirement of notice to the adverse party(ies) is essential. It cannot be usedagainst a party who was not named in the Petition or not issued a notice of the date andplace of the hearing.D. The deposition may be taken by oral testimony or by written interrogatories, asdirected by the court.

1. In oral testimony, the court may designate before whom the testimony shall be taken. Thewitness undergoes the stages of direct, cross, re-direct t and re-cross, examinations,which are duly recorded, including objections by the parties.

2. If the witness is no longer available for personal testimony during the trial, the testimony as,recorded becomes his testimony in court.


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Where the deposition is to be taken in a foreigncountry where the Philippines has no "secretary or

embassy or legation, consul general, consul, vice-consul,or consular agent," then obviously it may be taken only"before such person or officer as may be appointed bycommission or under letters rogatory. Section 12, Rule 24

provides as follows:

Sec. 12. Commission or letters rogatory. Acommission or letters rogatory shall be issued only whennecessary or convenient, on application and notice, and

on such terms and with such directions as are just andappropriate. Officers may be designated in notices orcommissions either by name or descriptive title andletters rogatory may be addressed "To the Appropriate

Judicial Authority in (here name the country)."

A commission may be defined as "(a)n instrument issued by a court of justice or


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A commission may be defined as (a)n instrument issued by a court of justice, orother competent tribunal, to authorize a person to take depositions, or do any other act byauthority of such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p. 415, citingCyclopedic Law Dictionary, p. 200). Letters rogatory, on the other hand, may be defined as"(a)n instrument sent in the name and by the authority of a judge or court to another,requesting the latter to cause to be examined, upon interrogatories filed in a causepending before the former, a witness who is within the jurisdiction of the judge or court to

whom such letters are addressed" (Feria, J., op. cit., citing Cyclopedic Law Dictionary, p.653). Section 12, Rule 24 just quoted states that a commission is addressed to "officers . .. designated . . . either by name or descriptive title," while letters rogatory are addressedto some "appropriate judicial authority in the foreign state." Noteworthy in this connectionis the indication in the Rules that letters rogatory may be applied for and issued only aftera commission has been "returned unexecuted" as is apparent from Form 21 of the "JudicialStandard Forms" appended to the Rules of Court, which requires the inclusion in a "petition

for letters rogatory" of the following paragraph, viz.:

xxx xxx xxx

3. A commission issued by this Court on the ______ day of ______,19__, to take the testimony of (here name the witness or witnesses) in(here name the foreign country in which the testimony is to be taken),

before _________________ (name of officer), was returnedunexecuted by __________________ on the ground that____________, all of which more fully appears from the certificate ofsaid __________ to said commission and made a part hereof byattaching it hereto (or state other facts to show commission isinadequate or cannot be executed) (emphasis supplied).

CONTRACTS


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CONTRACTS

Art. 1305. A contract is a meeting of minds between twopersons whereby one binds himself, with respect to the other, to

give something or to render some service.

Art. 1306. the contracting parties may establish such stipulations,clauses, terms and conditions as they may deem convenient,

provided they are not contrary to law, morals , good customs,public order, or public policy.

Art 1315. Contracts are perfected by mere consent, and from thatmoment the parties are bound not only to the fulfillment of whathas been expressly stipulated but also to all the consequenceswhich, according to their nature, may be in keeping with faith,usage and law


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ESSENTIAL REQUISITES

Art. 1318. There is no contract unless the following

requisites concur:

1. consent of the contracting parties

2. object certain which is the subject matter of the

contract3. cause of the obligation which is established

Art. 1327. the following cannot give consent to a contract:

1. unemancipated minors

2. insane or demented persons, and deaf-mutes who do

not know how to write

Art 1328 Contracts entered into during a lucid interval are valid


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Art. 1328. Contracts entered into during a lucid interval are valid.Contracts agreed to in a state of drunkenness or during a hypnoticspell are voidable

Art. 1332. When one of the parties is unable to read, or if thecontract is in a language not understood by him, and mistake orfraud is alleged, the person enforcing the contract must show thatthe terms thereof have been fully explained to the former

OBJECT AND CAUSEArt. 1347. All things which are not outside the commerce of men,including future things, may be the object of a contract. All rightswhich are not intransmissible may also be the object of contracts

No contract may be entered into upon future inheritanceexcept in cases expressly authorized by law

All services which are not contrary to law, morals, goodcustoms, public order or public policy may likewise be the objectof a contract


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Art. 1348. Impossible things or services cannnot be theobject of contracts

Art 1350. In onerous contracts the cause is understoodto be, for each contracting party, the prestation orpromise of a thing or service by the other; in

remuneratory ones, the service or benefit which isremunerated; and in contracts of pure beneficencense,the mere liberality of the benefactor

Art 1352. Contracts without cause, or with unlawfulcause, produce no effect whatever.The cause is unlawful if it is contrary to law, morals, goodcustoms, public order or public policy.


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FORM

Art. 1356. contracts shall be obligatory in whatever form they

may have been entered into, provided all the essential requisitesfor their validity are present. However, when the law requires thata contract be proved in a certain way, that requirement isabsolute and indispensable. In such case, the right of the parties

stated in the following article cannot be exercised

Art. 1357. If the law requires a document or other special form, asin the acts and contracts enumerated in the following article, the

contracting parties may compel each other to observe that form,once the contract has been perfected. This right may beexercised simultaneously with the action upon the contract

WHAT MUST APPEAR IN A PUBLIC INSTRUMENT?


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WHAT MUST APPEAR IN A PUBLIC INSTRUMENT?

Art. 1358 The following must appear in a public document:

1. Acts and contracts which have for their object the creation,

transmission, modification or extinguishment of real rights overimmovable property; sales of real property of an interest thereinare governed by Art. 1403 no 2 and 1405

2. The cession, repudiation or renunciation of hereditary rights

or of those of the conjugal partnership of gains.

3. the power to administer property, or any other power whichhas for its object an act appearing or which should appear in apublic document, or should prejudice a third person;

4. The cession of actions or rights proceeding from an actappearing in a public document;

All other contracts where the amount involved exceeeds 500

pesos must appear in writing, even in a private one


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CONTRACT OF PURCHASE AND SALE

Art. 1483. Subject to the provisions of the Statute ofFrauds and of any other applicable statute, a contract ofsale may be made in writing or by word or mouth, orpartly in writing and partly by word of mouth, or may beinferred from the conduct of the parties.

Art. 1940. The husband and the wife cannot sell proertyto each other, except:

1. When a separation of property was agreed upon inthe marriage settlements;

2. When there has been a judicial separation ofproperty under Art 191

Art 1941. the following persons cannot acquire by purchase, even at a


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Art 1941. the following persons cannot acquire by purchase, even at apublic or judicial auction, either in person or through the mediation ofanother:

1. The guardian, the property of the person or persons who may be

under his guardianship

2. Agents, the property whose administrations or sale may havebeen entrusted to them, unless the consent of the principal has beengiven;

3. Executors and administrators, the property of the estate underadministration;

4. Public officers and employees, the property of the State or of anysubdivision thereof, or of any government owned and controlled

corporation, or institution, the administration of which has beenentrusted to them

5. Justices, judges, prosecuting attorneys, etc., with respect to theproperty and rights which may be the object of any litigation to which

they may take part by virtue of their profession and others disqualifiedb law


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END

OF

LECTURE

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2011 Legal Forms