Published 3 July 2023, The Daily Tribune
Remember the time you lost your ID and were required to present an Affidavit of Loss?
Whether for an Affidavit of Loss, Deed of Sale, or other legal documents, one will inevitably be required to appear before a notary public at some point in life.
In numerous cases, the Supreme Court has reiterated the rule that notarization is not an empty, meaningless, and routinary act, but one invested with substantive public interest.
Thus, here are things that must be kept in mind in case a need for notarial service arises:
- Not all lawyers are notaries public. But all notaries public are lawyers. A common misconception about notarization is that all lawyers can notarize a document. It must be made clear that a lawyer is not automatically a notary public. The power to notarize documents is not inherent to lawyers.
To be a notary public, a lawyer must possess all of the qualifications under the 2004 Rules on Notarial Practice and must file a Petition for Notarial Commission with the Executive Judge of the place of commission.
- Personal appearance before the notary public is required at ALL times. Subject to the 2020 Interim Rules on Remote Notarization, a notary public shall not perform a notarial act if the signatory to the instrument or document is not in the notary’s presence at the time of the notarization.
The fact that the notary public personally knows the signatory is not an exemption to the requirement of personal appearance. Such fact only dispenses with the requirement of presentation of competent evidence of identity by the signatory.
The person and the notary public who make it appear that there was a personal appearance before the notary public when in fact there was none may be prosecuted and held liable for the Falsification of Public Document.
- A notary public can only notarize documents within his territorial jurisdiction. A notary public’s power to perform notarial acts is not absolute. A notary public can only notarize documents within his territorial jurisdiction. Thus, a notary public commissioned in Manila cannot perform notarial acts in Makati, and vice versa.
- A notary public is disqualified from performing notarial acts for certain relatives. To be specific, a notary public is disqualified from performing a notarial act if he is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity within the fourth civil degree of the person whose act is the subject of notarization.
- A notary public must have a regular and stationary place of work or business. A notary public must maintain a regular place of work or business in the city or province where the commission is to be issued.
Subject to certain exceptional occasions or situations under the 2004 Notarial Rules, the rule is that a notary public shall not perform a notarial act outside of his regular place of business. Thus, one must think twice and exercise extra caution before availing oneself of notarial services offered and performed on the sides of the street.
- Notarization converts a private document to a public document. Notarization converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. Thus, a notarized document is, by law, entitled to full faith and credit upon its face.
- A defect in the notarization does not necessarily invalidate the document. A defective notarization does not necessarily invalidate the instrument/ document especially when notarization is not a requirement for its validity. A defective notarization merely strips the document of its public character and reduces it to a private instrument.
- A person who knowingly acts or otherwise impersonates a notary public may be subject to prosecution. It must be noted that the notary public must personally sign the notarial certificate. Notarial functions must be fulfilled by the notary public himself and not by anyone else. A notary public cannot delegate any of his notarial functions, even the recording of entries in his notarial register to his secretary.
For more of Dean Nilo Divina’s legal tidbits,
please visit www.divinalaw.com. For
comments and questions, please send an email to firstname.lastname@example.org.