1. The usual commencement of a contract should be : This Agreement, or An Agreement, 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 be named in the document must be observed

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

7. The document should be neat, free from erasures, interlineations, or suspicious of alterations. 8. A clause may be inserted at the end of an agreement that this contract shall extend and be binding 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>

* Unprinted documents presented to the superior courts 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.

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

A. Appointment of Notaries Public - in the province, appointed by judges of the CFI (now RTC) of the respective provinces

- term expires after the two year 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.

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)

* 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.

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, and

4. To make declarations and certify the truth thereof under his seal of office, concerning all matters done by him by virtue of his office.

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 the proper 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

6. The failure of the notary to make

the proper notation regarding cedula certificates 7. The failure of a notary to make report, within a reasonable time, to the proper 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.

G.Professional Misconduct of a Notary Public

1. Delivery of blank sheets with notarial seal is censurable, notary is guilty of malpractice and is liable to either reprimand or suspension
2. An acknowledgment taken outside the territorial limits of a notary publics jurisdiction is void, notary is without is without official character 3. Legalization of document containing illegal provisions is professional misconduct, this may be a ground for disbarment. (immoral and disrespectful)

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.

FORMS - A MANNER OR METHOD, EIHER REGULATIVE OR PRESCRIPTIVE

- 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 to another; includes examination of the alienor of the title and preparation and execution of the contract transferring title *AGREEMENT

refers to agreement of parties translated to writing

*DEED -a writing/instrument, delivered and sealed on paper/parchment; to show proof and to testify to the agreement of parties 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 the required formalities complied with B. Private Document deed or instrument executed by private persons *AUTHENTICATION - proof of due execution and genuineness A. Public Document- admissible without further proof B. Notarial Document acknowledged and ratified by a notary public

ACKNOWLEDGMENT

- formal declaration or admission before a notary public by a person 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 competent officer 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 subscribed and sworn to or affirmed before proper officer without further stating that it is his act or deed VERIFICATION - verification as to the contents of the instrument executed ; acknowledgment only verifies as to the fact of execution.

ATTESTATION: act of the third person who witnessed the actual execution of an instrument and subscribes his name as witness to that fact; PURPOSE OF ACKNOWLEDGMENT: merely evidentiary in character except that the statute made it essential to the validity of an instrument admissible to record or evidence. CONTENTS: 1. Venue/place where acknowledged - Before me a notary public this ______ day xxx xxx xxx

2. date
3. certification of party personally appeared before me _______ who executed the instrument xxx xxx

4. residence certificate of the current year

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

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

STATUTORY PROVISIONS

Sec. 50, Act No. 496- Deed of sale of lands registered under the Torrens Systems must be in a public instrument.
Art. 749. in order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the proerty donated and the value of the charges which the donee must satisfy. The acceptance must be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the fonor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form and this step shall be noted in both instruments

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court

AFFIDAVIT - a statement in writing declared to be true by the party making it and certified to have been sworn to before him by the officer who takes it - a written statement under oath taken before an authorized officer

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
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 the administration of an oath

- Must be included in the sense of evidencing various facts as to the making 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 6. Authority of officer 7. Seal of officer 8. Statement of expiry of commission

JURAT distinguish from DEPOSITION /VERIFIED PLEADING Jurat - affidavit is taken ex-parte, voluntarily, without notice to the other party and without opportunity for cross-examination - Must always be under oath Deposition - Taken upon notice to the adverse party for the purpose of enabling him to cross-examine the person whose deposition is being taken - Verified Pleading is substantially an affidavit as it is based not only on information and belief but on knowledge of the facts

Prosecutors Jurat/ certification

SUBSCRIBED AND SWORN TO before me this _____ day of ______________, 2008 at Bacolod City, Philippines. I hereby certify that I have personally examined the affiant and that I am fully satisfied that he executed the foregoing Affidavit-Complaint voluntarily and fully understood all the allegations therein stated Administering Officer

VERIFICATION

I, ANDREW DI, Filipino, single, of legal age, and with residence address at 123 Mariano St. Sampaloc, Manila, after having been duly sworn to in accordance 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 said answer 4. I have read the allegations therein contained, and that the same are true and correct of my personal knowledge or based on authentic records. FURTHER AFFIANT SAYETH NAUGHT.

IN WITNESS WHEREOF, I have affixed my signature hereunder on this 5th day of December 2008 at Manila. Affiant SUBSCRIBED AND SWORN to before me on this 5th day of December 2008 at the City of Manila: affiant exhibited to me his SSS ID No. 6549812 issued on July 15, 2007 and valid until present. WITNESS MY HAND AND NOTARIAL SEAL on the date and at the place above written.
Atty. Katrina P. Tan Notary Public for Manila Commission Serial No. 956784 Until December 31, 2009 543 Rose St., Malate, Manila Roll of Attorney No. 567432 PTR No. 145678 issued at Manila on July 11, 2003 IBP No. 345211/02/17/05/Manila

Doc. No. 20 ; Page No. 4 ; Book No. V ; Series of 2008.

AFFIDAVIT OF GOOD FAITH We, the undersigned MORTGAGOR AND MORTGAGEE hereby jointly and severally swear that we executed the foregoing Chattel Mortgage in order to secure the indebtedness therein and for no other purpose or purposes contrary to law. __________ MORTGAGOR ____________ MORTGAGEE

ACKNOWLEDGMENT REPUBLIC OF THE PHILIPPINES) _____________________________ ) SS. BEFORE ME, a Notary Public, this ____________day of ________________, personally appeared the following: Name (Name of Seller/Vendor) (Name of Buyer/Vendee) CTC Number 10000000 10000000 Date/Place Issued February 5, 2008 / Pasay City January 14, 2008 / Quezon City

This instrument, consisting of ___ page/s, including the page on which this acknowledgment is written, has been signed on the left margin of each and every page thereof 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 place above written.
Notary Public Doc. No. ........; Page No. .......; Book No. .......; Series of 2008

PERPETUATION OF TESTIMONY A. 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 personally testify in Court during the trial of a case in which he may be involved, And therefore the purpose 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 preserve testimony 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 witness is 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 used against a party who was not named in the Petition or not issued a notice of the date and place of the hearing. D. The deposition may be taken by oral testimony or by written interrogatories, as directed by the court. 1. In oral testimony, the court may designate before whom the testimony shall be taken. The witness 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.

Where the deposition is to be taken in a foreign country 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 by commission or under letters rogatory. Section 12, Rule 24 provides as follows: Sec. 12. Commission or letters rogatory. A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters 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 other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p. 415, citing Cyclopedic 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 cause pending 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 addressed to some "appropriate judicial authority in the foreign state." Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied for and issued only after a commission has been "returned unexecuted" as is apparent from Form 21 of the "Judicial Standard 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 returned unexecuted by __________________ on the ground that ____________, all of which more fully appears from the certificate of said __________ to said commission and made a part hereof by attaching it hereto (or state other facts to show commission is inadequate or cannot be executed) (emphasis supplied).

CONTRACTS

Art. 1305. A contract is a meeting of minds between two persons 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 that moment the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with faith, usage and law

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 contract

3. 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. Contracts agreed to in a state of drunkenness or during a hypnotic spell are voidable Art. 1332. When one of the parties is unable to read, or if the contract is in a language not understood by him, and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been fully explained to the former OBJECT AND CAUSE

Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts
No contract may be entered into upon future inheritance except in cases expressly authorized by law All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract

Art. 1348. Impossible things or services cannnot be the object of contracts

Art 1350. In onerous contracts the cause is understood to be, for each contracting party, the prestation or promise of a thing or service by the other; in remuneratory ones, the service or benefit which is remunerated; and in contracts of pure beneficencense, the mere liberality of the benefactor

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

FORM
Art. 1356. contracts shall be obligatory in whatever form they may have been entered into, provided all the essential requisites for their validity are present. However, when the law requires that a contract be proved in a certain way, that requirement is absolute 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, as in 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 be exercised simultaneously with the action upon the contract

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 over immovable property; sales of real property of an interest therein are 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 which has for its object an act appearing or which should appear in a public document, or should prejudice a third person; 4. The cession of actions or rights proceeding from an act appearing in a public document;
All other contracts where the amount involved exceeeds 500 pesos must appear in writing, even in a private one

CONTRACT OF PURCHASE AND SALE

Art. 1483. Subject to the provisions of the Statute of Frauds and of any other applicable statute, a contract of sale may be made in writing or by word or mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties. Art. 1940. The husband and the wife cannot sell proerty to each other, except: 1. When a separation of property was agreed upon in the marriage settlements; 2. When there has been a judicial separation of property under Art 191

Art 1941. the following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another: 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 have been entrusted to them, unless the consent of the principal has been given;
3. Executors and administrators, the property of the estate under administration; 4. Public officers and employees, the property of the State or of any subdivision thereof, or of any government owned and controlled corporation, or institution, the administration of which has been entrusted to them 5. Justices, judges, prosecuting attorneys, etc., with respect to the property and rights which may be the object of any litigation to which they may take part by virtue of their profession and others disqualified

END OF LECTURE

Presented by :

Fiscal Ma. Theresa B. Ditching