LEGAL FORMS…

CHAPTER IV (Legal Forms)

JOSEPHINE O ALTAMIRA
&
WILSON G TATARO

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LEGAL FORMS…

AFFIDAVIT
It is a sworn statement in writing sworn before a
notary or other officers entitled to administer oaths
or take acknowledgments.

*In executing an affidavit, the affiant’s primary qualification is

that he has knowledge of the facts which he states, and the
truth of which he affirms.

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PARTS OF AFFIDAVIT
1. Venue- The place where the affidavit was taken. This will
show that the official administering the oath of
Davao
affirmation has acted within the jurisdiction.

2. Body- The facts stated in the body of an affidavit must

be stated positively, and not merely as a matter of belief
by one who has actual knowledge of the fact and its
allegations should be full, certain, and exact.

3. Signature of the affiant and the Jurat- The proper place

of the signature is below the body of the affidavit.

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 EXAMPLES OF AFFIDAVIT
Affidavit of Good Faith-a
certificate included in the chattel
mortgage contract executed by
both the mortgagor and
mortgagee that the mortgage is
constituted to secure the
specified obligation, and the said
obligation is a valid, just, and
subsisting obligation and not one
entered into for the purpose of
fraud.

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 EXAMPLES OF AFFIDAVIT

Affidavit of merit- An
affidavit which states
that the defendant has
a meritorious defense
of a substantial and not
merely technical nature
and stating the facts
constituting the same.

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EXAMPLES OF AFFIDAVIT

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EXAMPLES OF AFFIDAVIT

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EXAMPLES OF AFFIDAVIT

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EXAMPLES OF AFFIDAVIT

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 INSTANCES WHEN AN AFFIDAVIT IS EXECUTED IN
SUPPORT OF A PETITION OR MOTION
1. When the petition to be filed by the plaintiff pertains to a provisional remedy (attachment, preliminary injunctions, receivership,
replevin, and alimony pendente lite).

2. When the property attached or subject of attachment is claimed by any person other than the party against whom the attachment had
been issued.

3. A party seeking to recover upon a claim, counterclaim or cross claim or to obtain a declamatory relief may, at any time after a pleading
in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon
all or any party thereof. (Rule 35, Sec. 1, New Rules of Court)

4. Other instances when an affidavit is required:

a. Affidavit of Merit
b. Affidavit in support of a motion to postpone trial for the absence of evidence.
c. Affidavit in support of the application for copyright
d. Affidavit in support of a motion for new trial (Sec. 2, Rule 37, New Rules of Court)
e. Other affidavits that may be required.

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RULES AND PRINCIPLES AT A GLANCE
1. ATTACHMENT

It is the provisional remedy which is ancillary to a principal action whereby a plaintiff or any proper party may, at the
commencement of the action or at the time thereafter, have the property of the adverse party attached or taken into
legal custody as security for the satisfaction of the judgment that may be recovered.

THREE (3) KINDS OF ATTACHMENT

PRELIMINARY ATTACHMENT- An attachment which is given at the beginning of action or during its pendency or before
the finality of the judgment.

GARNISHMENT- An attachment allowing the plaintiff to reach credits, whether money or property, belonging to or owned
by the debtor or owing to him from someone who is not a party to the litigation. The latter is, in effect, ordered to pay the
new creditors, not the old creditors.

FINAL ATTACHMENT- An attachment given by the court to enforce or satisfy a final and executory judgment

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IMPORTANCE OF AFFIDAVIT REQUIRED BY RULE 57, NEW RULES OF COURT
-The affidavit is the foundation of the writ.

EFFECT IF NO AFFIDAVIT IS FILED, OR IF THE AFFIDAVIT THAT WAS FILED WHOLLY FAILS TO SET OUT THE FACTS
REQUIRED BY RULE 57, SECTION 3
There is no jurisdiction and the proceedings are null and void. The writ of preliminary attachment issued
against the property of the defendant is fatally defective, and the judge issuing it is deemed to have acted in excess of his
jurisdiction. Moreover, it cannot be covered by the amendment. (Jardine Manila Finance, Inc. vs Court of Appeals (1989)
171 SCRA 636, 645 citing K.O. Glass Construction Co., Inc. vs Valenzuela (1982) 116 SCRA 568).

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2. REPLEVIN
It is a provisional remedy whereby the plaintiff petitions the court to compel in the meantime the delivery to him of such
personal property mentioned in his complaint. The plaintiff may ask for this remedy at the commencement of the action,
or at any time before the answer.

Requirements:

a. That the plaintiff is the owner of the property claimed particularly describing it, or is entitled to the possession
thereof;

b. That the property is WRONGFULLY DETAINED by the defendant (the cause of detention must be alleged according to
the petitioner’s knowledge, information, and belief);

c. That it has: (a) not been taken for a tax assessment or fine pursuant to law; or (b) not seized under execution or
attachment of the property of the plaintiff, or if so seized, that it is EXEMPT from such seizure; and (c) the actual value of
the property. (Sec. 2, Rule 60)

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3. PRELIMINARY INJUNCTIONS

It is an order granted at any stage of an action prior to the finality of a judgment requiring a person to refrain from a
particular act or requiring the performance of a particular act.

GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTIONS

That the plaintiff is entitled to the relief demanded, and the whole or part of such relief consists in restraining the
commission or continuance of the acts complained of, or in the performance of an acts either for a limited period or
perpetually.

That the commission or continuance of some acts complained of during the litigation or non-performance thereof would
probably work injustice to the plaintiff.

That the defendant is doing, threatening, or is about to do, or is procuring or suffering to be done some act probably in
violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual. (Sec.
3, Rule 58)

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4. RECEIVERSHIP
It is a provisional remedy whereby the court appoints a receiver to hold the real or personal property in litigation during
its pendency with the power to possess, take hold of, control and to dispose of the same as may be allowed by the court
in the proper cases.

WHEN TO APPOINT A RECEIVER

1. When a corporation has been dissolved, or insolvent, or in imminent danger of insolvency, or has forfeited its
corporate rights.
2. When the party applying for the appointment of a receiver has an interest in the property involved which may be lost,
removed, or materially injured.
3. When in a case of foreclosure of a mortgage: (a) the property is in danger of being wasted or materially injured and
its value is probably insufficient to discharge the mortgage debt; (b) there was a stipulation for receivership in the
mortgage contract.
4. When there is already a judgment BUT: (a) the property has to be preserved during the appeal; (b) the judgment
could not be executed; or (c) the judgment obligor refuses to apply his property in satisfaction of the judgment or
otherwise to make the judgement effective.
5. In all other cases when receivership would be convenient and feasible. (Sec. 1, Rule 59, New Rules of Court).

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5. ALIMONY PENDENTE LITE

This is also known as support pending litigation. It is a provisional remedy whereby the plaintiff, at the commencement of
the proper action, or at any time afterwards but prior to final judgment, may file an application for alimony pendente lite
stating the grounds for the claim and the financial conditions of both parties and shall be accomplished by affidavits,
depositions, or other authentic documents in support thereof.

SPECIAL CIVIL ACTION

It is an action whereby one party sues another to enforce or protect a right or to prevent the commission of a wrong by the
following special rules of procedure.
The special civil actions are the following:
1. Interpleader;
2. Declaratory relief;
3. Certiorari, prohibition, mandamus;
4. Quo warranto;
5. Eminent domain;
6. Foreclosure of mortgage;
7. Partition of real estate;
8. Forcible entry and unlawful detainer; and
9. Contempt

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EXAMPLES OF AFFIDAVIT

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AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT
A motion for summary judgment must be accompanied with supporting affidavits. (Rule 34, Sec 1. 1 and 2,
Rules of court) The adverse party must, prior to the day of hearing, serve opposing affidavits. (Rule 34, sec. 5, Rules of
Court).

AFFIDAVIT TO SUPPORT MOTION TO POSTPONE TRIAL FOR ABSENCE OF EVIDENCE

A motion to postpone a trial on the ground of absence of evidence must be supported by an affidavit showing
the materiality of the evidence perfected to be obtained, and that due diligence has been use to procure it. (Rule 22, Sec.
4 Rules of Court).

AFFIDAVIT TO SUPPORT PETITION, DISSOLUTION OF OPPOSITION TO THE PRELIMINARY INJUNCTION

An affidavit for preliminary injunction must be supported by affidavits or by verified complaint showing that
great or irreparable injury would result to the applicant before the matter can be heard on notice. (Rule 58, Sec 5, Rules
of Court) An injunction may be refused or dissolved on justifiable grounds upon affidavits on the part of the defendants
which may be opposed by the plaintiff also by affidavits. (Rule 58, Sec. 6, Rules of Court)

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