BUSINESS

Notarial Act 101

BY EDUARDO MARTINEZ

SEPTEMBER 03, 2018

Mark decides to sell his land to Billy. They agree to sign the deed of sale at the bank where Billy will
simultaneously give payment. After both parties sign, Mark instructs his secretary, “Look for an Attorney
and have this deed of sale notarized. Bring our residence certificates with you.” An hour later the
secretary comes back clutching a deed of sale – notarized at that. Does this sound familiar to you? Or
have you done this too? This is a common and prevalent practice in our country. But did you know that
this is incorrect?

In notarizing a document, the parties must personally appear before a notary public

Under the 2004 Rules on Notarial Practice (A.M. 02-8-13-SC), “A person shall not perform a notarial act if
the person involved as signatory to the instrument or document — (1) is not in the notary’s 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 a competent evidence of identity…”(Section 2b). “[A]
notary public shall not perform a notarial act outside his regular place of work or business…”(Section 2a).

So clearly in notarizing a document, the parties must personally appear before a notary public. They
affirm to him that what they signed is really their free and voluntary act. This must be done in the
notary’s office (or other public places sanctioned by the Rules). And finally, a cedula or what we
commonly know as the residence certificate is no longer in use to identify the person. Rather, we have
what is called “competent evidence of identity.” It is an official identification card, with picture and
signature of the person the ID is granted to, issued by a government office. Examples are passport,
driver’s license, Professional Regulation Commission ID, National Bureau of Investigation and Philippine
National Police clearances, postal and voter’s ID, to name a few.

As you can see, notarization is not just a matter of signing a document and sending it to a notary. It is not
a mere meaningless ritual. Rather, it is one of great importance. “Every instrument duly acknowledged or
proved and certified as provided by law, may be presented in evidence without further proof, the
certificate of acknowledgement being prima facie evidence of the execution of the instrument or
document involved”(Section 30, Rule 132, Rules of Court). What does this mean? Prima facie means
evidence sufficient on its face as defined in Moreno’s Law Dictionary. So, when a document is notarized,
the presupposition is that the parties actually executed the document. And the notary public saw it. So,
if and when the document is presented in court during a legal battle for instance, it can be presented as
is, without need to prove its due execution. Why? Because an officer of the court – which is the notary –
has already attested to it.

So, if the notary saw not even the shadow of the parties, how can he attest to such circumstances? How
can he certify that he ascertained their identities by presentation of the competent evidence of identity?
And what is the danger if the parties never appeared before the notary? For one, the signatories may be
fictitious persons. So, a real transaction then has taken place between parties, where one or both never
really existed. Or they may be real persons, but their signatures may be forged. The supposed signatories
may have died a long time ago. Worse, they may still be alive, but never had the intention of
participating in the transaction embodied in the deed. Or the signatories may have genuinely affixed
their signatures. But they were done under force, threat or duress. So, all these circumstances the notary
would have easily seen had the parties appeared before him.

Now you realize the significance of the notary public. Notarization is not a mere ministerial act of
certifying a document. Rather, the notary performs strict task of ensuring that the parties are existent,
still alive, aware of what they are entering into and voluntarily signed. By doing so, crimes are not
perpetrated. Fraudulent sales are averted. And real people participate in transactions.

In my law firm, I require parties to be personally present in signing documents to be notarized. I instruct
the notary to go through the rituals of notarization. Previously, my clients would subtly complain about
such requirement. They would compare me to others who allowed non-appearance. Only after I
educated them about the purpose and intention of the rules did they conform and appreciate why I do it
that way. So now, whenever they want to have something notarized, they themselves are present, not
just the document.

When a document is notarized, the presupposition is that the parties actually executed the document.

From my past articles, you would observe that I have been writing about laws that came into effect
recently. You may wonder why now, I write about a rule that has been in place since August 2004.
Simple. While the Rules on Notarial Practice may have taken effect way back in 2004, still the practice of
non-appearance before a notary public exists to this very day. And there seems to be no let up. High time
to remind everyone once again what the rules require and why they are so. So, the next time you want
to have a document notarized, don’t think twice. Go straight to a notary. Sign and affirm before him. And
let him perform his job.

And I go back to the sale of land between Mark and Billy I cited above. Now you know that the deed was
irregularly notarized. What then is its effect on the sale itself? That is a discussion for another day.