UNNOTARIZED DEED MAY BE PROOF OF CONTRACT OF SALE

Dear PAO,

Lito denied the existence of our a“reement re“ardin“the sale of his land. He claimed that the written a“reement we si“ned was not notarized so it will not be admitted as evidence. Moreover, he said that since the document was not notarized then it follows that there is no contract of sale. Is he correct?

Hizola

Dear Hizola,

A contract is defined under Article 1305 of the New Civil Code of the Philippines as “a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.” Correlative thereto, Article 1458 thereof provides that: “By the contract of sale one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. A contract of sale may be absolute or conditional.”

On the other hand, Article 1475 of the same law also states that: “The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the object of the contract and upon the price. From that moment, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts.” Accordingly, a contract is formed between you and Lito at the precise moment that you both agreed to the sale of the subject land and the contract price. As a consequence of your contract of sale, both of you may demand performance of the other party’s obligation in accordance with law and the terms and conditions of your agreement.

Lito may have based his claim on Article 1358 of the New Civil Code of the Philippines, which states that certain contracts must appear in a public document. The sale of real property was mentioned in said article to the effect that such transaction is governed by Article 1403 (Statute of Fraud). Thus, notarization appears to be required. However, our Supreme Court already ruled that the said article “does not require such form in order to validate the act or contract but to insure its efficacy. Contracts enumerated by this article are, therefore, valid as between the contracting parties, even when they have not been reduced to public or private writings.” (Julio Tapec and Prisca Galano v. Court of Appeals and Loreto Raguirag, GR 111952, Oct. 26, 1994, penned by former Chief Justice Hilario G. Davide, Jr.)

As to the admissibility in evidence of your unnotarized contract of sale, the said private document may still be admitted as evidence pursuant to Section 20, Rule 132 of A. M. No. 19-08-15-SC (2019 Amendments to the 1989 Revised Rules on Evidence) which provides that:

“Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved by any of the following means:

“(a) By anyone who saw the document executed or written;

“(b) By evidence of the genuineness of the signature or handwriting of the maker; or

“(c) By other evidence showing its due execution and authenticity.

“Any other private document need ONLY BE IDENTIfiED AS THAT WHICH IT IS claimed to be.”

The afore-cited provision of the rule was applied in the case of Marito and Maria Fe Serna v. Tito and Iluminada Dela Cruz, GR 237291, Feb. 1, 2021, where the Supreme Court speaking through Justice Edgardo delos Santos said that:

“The handwritten Agreement, which respondents presented as proof of the contract of sale over the subject properties, is a private document. It bears pointing out that there was likewise compliance with the authentication of private documents FOR PURPOSES OF ADMISSIBILITY AS SPECIfiED under Rule 132, Section 20 of the Rules of Court, to wit:

“Section 20. Proof of private document. - Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

“(a) By anyone who saw the document executed or written; or

“(b) By evidence of the genuineness of the signature or handwriting of the maker.

“Any other private document need only BE IDENTIfiED AS THAT WHICH IT IS CLAIMED to be.

“Considering that Section 20 (a) was observed, petitioners can no longer dispute the due execution of the Agreement. xxx”

Applying the above-quoted decision in your situation, your contract of sale with Lito, which is a private document, may still be admitted to prove the existence of the sale. However, it is essential that its due execution and authenticity be proved either by anyone who saw the document executed or written, or by evidence of the genuineness of the signature or handwriting of the maker or by other evidence.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net