I. LEGAL WRITING
4. Formality
Legal writing is a type of technical writing used by
lawyers, judges, legislators, and others in law to
express legal analysis and legal rights and duties. Legal
writing in practice is used to advocate for or to express
the resolution of a client's legal matter.
Distinguishing features
1. Authority. Legal writing places heavy reliance on
authority. In most legal writing, the writer must back
up assertions and statements with citations to
authority.
2. Precedent. Legal writing values precedent, as
distinct from authority. Precedent means the way
things have been done before. For example, a lawyer
who must prepare a contract and who has prepared a
similar contract before will often re-use, with limited
changes, the old contract for the new occasion. Or a
lawyer who has filed a successful motion to dismiss a
lawsuit may use the same or a very similar form of
motion again in another case, and so on. Many lawyers
use and re-use written documents in this way and call
these re-usable documents templates or, less commonly,
forms.
3. Vocabulary. Legal writing extensively uses technical
terminology that can be categorised in four ways:
a. Specialized words and phrases unique to law, e.g.,
tort, fee simple, and novation.
b. Quotidian words having different meanings in law,
e.g., action (lawsuit), consideration (support for a
promise), execute (to sign to effect), and party (a
principal in a lawsuit).
c. Archaic vocabulary: legal writing employs many old
words and phrases that were formerly quotidian
language, but today exist mostly or only in law,
dating from the 16th century; English examples are
herein, hereto, hereby, heretofore, herewith,
whereby, and wherefore (pronominal adverbs); said
and such (as adjectives).
d. Loan words and phrases from other languages: In
English, this includes terms derived from French
(estoppel, laches, and voir dire) and Latin
(certiorari, habeas corpus,prima facie, inter alia,
mens rea, sub judice) and are not italicised as
English legal language, as would be foreign words in
mainstream English writing.
These features tend to make legal writing formal. This
formality can take the form of long sentences, complex
constructions, archaic and hyper-formal vocabulary, and
a focus on content to the exclusion of reader needs.
Some of this formality in legal writing is necessary and
desirable, given the importance of some legal documents
and the seriousness of the circumstances in which some
legal documents are used. Yet not all formality in legal
writing is justified. To the extent that formality
produces opacity and imprecision, it is undesirable. To
the extent that formality hinders reader
comprehension, it is less desirable. In particular, when
legal content must be conveyed to nonlawyers, formality
should give way to clear communication.
What is crucial in setting the level of formality in any
legal document is assessing the needs and expectations
of the audience. For example, an appellate brief to the
highest court in your jurisdiction calls for a formal
stylethis shows proper respect for the court and for
the legal matter at issue. An interoffice legal
memorandum to a supervisor can probably be less
formalthough not colloquialbecause it is an in-house
decision-making tool, not a court document. And an
email message to a friend and client, updating the
status of a legal matter, is appropriately informal.
Transaction documentslegal draftingfall on a similar
continuum. A 150-page merger agreement between two
large corporations, in which both sides are represented
by counsel, will be highly formaland should also be
accurate, precise, and airtight (features not always
compatible with high formality). A commercial lease for
a small company using a small office space will likely be
much shorter and will require less complexity, but may
still be somewhat formal. But a proxy statement
allowing the members of a neighborhood association to
designate their voting preferences for the next board
meeting ought to be as plain as can be. If informality
aids that goal, it is justified.
Categories of legal writing
1. Predictive legal analysis
The legal memorandum is the most common type of
predictive legal analysis; it may include the client letter
or legal opinion. The legal memorandum predicts the
outcome of a legal question by analyzing the authorities
governing the question and the relevant facts that gave
rise to the legal question. It explains and applies the
authorities in predicting an outcome, and ends with
advice and recommendations. The legal memorandum
also serves as record of the research done for a given
legal question. Traditionally, and to meet the legal
reader's expectations, it is formally organized and
written.
2. Persuasive legal analysis
The persuasive document, a motion or a brief, attempts
to persuade a deciding authority to favorably decide
the dispute for the author's client. Motions and briefs
are usually submitted to judges, but also to mediators,
arbitrators, and others. In addition a persuasive letter
may attempt to persuade the dispute's opposing party.
Persuasive writing is the most rhetorically stylized. So
although a brief states the legal issues, describes
authorities, and applies authorities to the questionas
does a memorandumthe brief's application portion is
framed as an argument. The author argues for one
approach to resolving the legal matter and does not
present a neutral analysis.
3. Legal drafting
Legal drafting creates binding, legal text. It includes
enacted law like statutes, rules, and regulations;
contracts (private and public); personal legal documents
like wills and trusts; and public legal documents like
notices and instructions. Legal drafting requires no legal
authority citation, and generally is written without a
stylised voice.
Plagiarism
In writing an objective analysis or a persuasive
document, lawyers write under the same plagiarism
rules applicable to most writers. Legal memoranda and
briefs must properly attribute quotations and source
authorities; yet, within a law office, a lawyer might
borrow from other lawyers' texts without attribution,
in using a well-phrased, successful argument made in a
previous brief.
Plagiarism is strictly prohibited in academic work,
especially in law review articles, seminar papers, and
similar writings intended to reflect the author's
original thoughts.
Legal drafting is different; unlike in most other legal
writing categories, plagiarism is accepted, because of
the high value of precedent. As noted, lawyers
extensively use formats (contracts, wills, etc.) in
drafting documents; borrowing from previous
documents is common. A good lawyer may frequently
copy, verbatim, well-written clauses from a contract, a
will, or a statute to serve his or her client's legal
interests.
Legalese
Legalese is an English term first used in 1914 for legal
writing that is very difficult for laymen to read and
understand, the implication being that this
abstruseness is deliberate for excluding the legally
untrained and to justify high fees. Legalese, as a term,
has been adopted in other languages. Legalese is
characterized by long sentences, many modifying
clauses, complex vocabulary, high abstraction, and
insensitivity to the layman's need to understand the
document's gist. Legalese arises most commonly in legal
drafting, yet appears in both types of legal analysis.
Some important points in the debate of "legalese" v.
"plain language" as the continued standard for legal
writing include:
1. Public comprehensibility
Perhaps most obviously, legalese suffers from being
less comprehensible to the general public than plain
English, which can be particularly important in both
private (e.g., contracts) and public matters (e.g., laws,
especially in democracies where the populace is seen as
both responsible for and subject to the laws).
Resistance to ambiguity. Legalese may be particularly
resistant to misinterpretation, be it incidental or
deliberate, for two reasons:
a. Its long history of use provides a similarly extensive
background of precedent tied to the language. This
precedent, as discussed above, will be a strong
determinant of how documents written in legalese will
be interpreted.
b. The legalese language itself may be more precise
when compared to plain English, having arisen from a
need for such precision, among other things.
Joseph Kimble, a modern plain-English expert and
advocate, rejects the claim that legalese is less
ambiguous in The Great Myth that Plain Language is not
Precise. Kimble says legalese often contains so many
convoluted constructions and circumlocutions that it is
more ambiguous than plain English.
Coverage of contingencies
Legal writing faces a trade off in attempting to cover
all possible contingencies while remaining reasonably
brief. Legalese is characterized by a shift in priority
towards the former of these concerns. For example,
legalese commonly uses doublets and triplets of words
(e.g., "null and void" and "dispute, controversy, or
claim") which may appear redundant or unnecessary to
laymen, but to a lawyer might reflect an important
reference to distinct legal concepts.
Plain-English advocates suggest that no document can
possibly cover every contingency, and that lawyers
should not attempt to encompass every contingency
they can foresee. Rather, lawyers should only draft for
the known, possible, reasonably expected contingencies;
Expectation/preference
Regardless of its objective merits or demerits when
compared to plain English, legalese has a clear
importance as a professional norm. As such, lawyers,
judges, and clients may expect and prefer it, although
no client or judge has ever actually expressed such a
preference publicly. But a study conducted by Joseph
Kimble, has expressly revealed the preference of
Judges and lawyers for plain language alternatives.
II. NOTARIAL LAWS AND RULES
A. Legislative Enactments and Judicial
Issuances
1. Act No. 2103 An Act Providing for the
Acknowledgement and Authentication of Instruments
and Documents Without the Philippine Islands
enacted on January 26, 1912
SECTION 1. An instrument or document acknowledged
and authenticated in any State, Territory, the District
of Columbia, or dependency of the United States, shall
be considered authentic if the acknowledgment and
authentication are made in accordance with the
following requirements:
(a) The acknowledgment shall be made before a notary
public or an officer duly authorized by law of the
county to take acknowledgments of instruments or
documents in the place where the act is done. The
notary public or the officer taking the acknowledgment
shall certify that the person acknowledging the
instrument or document is known to him and that he is
the same person who executed it, and acknowledged
that the same is his free act and deed. The certificate
shall be made under his official seal, if he is by law
required to keep a seal, and if not, his certificate shall
so state.
(b) The certificate of the notary public or the officer
taking the acknowledgment shall be authenticated by
the county clerk or his deputy, or by a clerk or deputy
clerk of any court of record of the county, municipality
or judicial district wherein the acknowledgment is
taken, or by the secretary of state, executive
secretary, or other similar functionary of the state,
territory, the District of Columbia, or dependency of
the United States, as the case may be. The officer
making the authentication shall certify under the seal
of his office or court that the person who took the
acknowledgment was at the time duly authorized to act
as notary public or that he was duly exercising the
functions of the office by virtue of which he assumed
to act, and that as such he had authority under the law
to take acknowledgment of instruments or documents in
the place where the acknowledgment was taken, and
that his signature and seal, if any, are genuine.
SECTION 2. An instrument or document acknowledged
and authenticated in a foreign country shall be
considered authentic if the acknowledgment and
authentication are made in accordance with the
following requirements:
(a) The acknowledgment shall be made before (1) an
ambassador, minister, secretary of legation, charges
daffaires, consul, vice-consul, or consular agent of the
United States, acting within the country or place to
which he is accredited, or (2) a notary public or officer
duly authorized by law of the country to take
acknowledgments of instruments or documents in the
place where the act is done.
(b) The person taking the acknowledgment shall certify
that the person acknowledging the instrument or
document is known to him, and that he is the same
person who executed it, and acknowledged that the
same is his free act and deed. The certificate shall be
under his official seal, if he is by law required to keep a
seal, and if not, his certificate shall so state. In case
the acknowledgment is made before a notary public or
an officer mentioned in subdivision (2) of the preceding
paragraph, the certificate of the notary public or the
officer taking the acknowledgment shall be
authenticated by an ambassador, minister, secretary of
legation, charges daffaires, consul, vice-consul, or
consular agent of the United States, acting within the
country or place to which he is accredited. The officer
making the authentication shall certify under his
official seal that the person who took the
acknowledgment was at the time duly authorized to act
as notary public or that he was duly exercising the
functions of the office by virtue of which he assumed
to act, and that as such he had authority under the law
to take acknowledgment of instruments or documents in
the place where the acknowledgment was taken, and
that his signature and seal, if any, are genuine.
SECTION 3. Instruments or documents acknowledged
and authenticated in substantial conformity with the
provisions of this Act before the same takes effect
shall be considered authentic.
SECTION 4. This Act shall not be construed to repeal
in any way any of the provisions contained in Chapter X,
Part I, of Act Numbered One hundred and ninety,
entitled An Act providing a code or procedure in civil
actions and special proceedings in the Philippine
Islands.
Enacted, January 26, 1912.
2. The Old Notarial Law Sec. 245 to 246 of Act
No. 2711 or the Revised Administrative Code of the
Philippines
SEC. 245. Notarial Register
SEC. 246. Matters to be entered therein
*The Notarial Law (Chapter 11 of Act 2711) has been
superseded effective August 1, 2004 by the 2004 Rules
on Notarial Practice (A.M. No. 02-8-13-SC) promulgated
on July 6, 2004.
3. Official Oaths Sec. 40 to 42, Book I, Chapter
10 of Executive Order No. 292, s. 1987
Administrative Code of 1987, as amended by
Republic Act No. 6733
Official Oaths
SECTION 40. Oaths of Office for Public Officers
and Employees.All public officers and employees of
the government including every member of the armed
forces shall, before entering upon the discharge of his
duties, take an oath or affirmation to uphold and
defend the Constitution; that he will bear true faith
and allegiance to it; obey the laws, legal orders and
decrees promulgated by the duly constituted
authorities; will well and faithfully discharge to the
best of his ability the duties of the office or position
upon which he is about to enter; and that he voluntarily
assumes the obligation imposed by his oath of office,
without mental reservation or purpose of evasion.
Copies of the oath shall be deposited with the Civil
Service Commission and the National Archives.
SECTION 41. Officers Authorized to Administer
Oath. The following officers have general authority
to administer oaths: President; Vice-President;
Members and Secretaries of both Houses of the
Congress; Members of the Judiciary; Secretaries of
Departments; provincial governors and lieutenant-
governors; city mayors; municipal mayors; bureau
directors; regional directors; clerks of courts;
registrars of deeds; other civilian officers in the public
service of the government of the Philippines whose
appointments are vested in the President and are
subject to confirmation by the Commission on
Appointments; all other constitutional officers; and
notaries public. [As amended by Section 2 of Republic
Act No. 6733]
SECTION 42. Duty to Administer Oath.Officers
authorized to administer oaths, with the exception of
notaries public, municipal judges and clerks of court,
are not obliged to administer oaths or execute
certificates save in matters of official business; and
with the exception of notaries public, the officer
performing the service in those matters shall charge no
fee, unless specifically authorized by law.
4. Presentation of Community Tax Certificate on
Certain Occasions Sec. 163, Republic Act No.
7160, Local Government Code of 1991
SEC. 163. Presentation of Community Tax
Certificate On Certain Occasions.
(a) When an individual subject to the community tax
acknowledges any document before a notary public,
takes the oath of office upon election or appointment
to any position in the government service; receives any
license, certificate, or permit from any public authority;
pays any tax or fee; receives any money from any public
fund; transacts other official business; or receives any
salary or wage from any person or corporation, it shall
be the duty of any person, officer, or corporation with
whom such transaction is made or business done or from
whom any salary or wage is received to require such
individual to exhibit the community tax certificate. The
presentation of community tax certificate shall not be
required in connection with the registration of a voter.
(b) When, through its authorized officers, any
corporation subject to the community tax receives any
license, certificate, or permit from any public authority,
pays any tax or fee, receives money from public funds,
or transacts other official business, it shall be the duty
of the public official with whom such transaction is
made or business done, to require such corporation to
exhibit the community tax certificate.
(c) The community tax certificate required in the two
preceding paragraphs shall be the one issued for the
current year, except for the period from January until
the fifteenth (15th) of April each year, in which case,
the certificate issued for the preceding year shall
suffice.
5. Effect of Failure to Stamp Taxable Document
Sec. 201, Title VII [Documentary Stamp Tax] of
Republic Act No. 8424 or the Tax Reform Act of
1997
Section 201. Effect of Failure to Stamp Taxable
Document. An instrument, document or paper which is
required by law to be stamped and which has been
signed, issued, accepted or transferred without being
duly stamped, shall not be recorded, nor shall it or any
copy thereof or any record of transfer of the same be
admitted or used in evidence in any court until the
requisite stamp or stamps are affixed thereto and
cancelled.
6. 2004 Rules on Notarial Practice A.M. No. 02-
8-13-SC, SC En Banc Resolution dated July 6, 2004
7. Amendment to Sec 12(a) of the 2004 Rules on
Notarial Practice, A.M. No. 02-8-13-SC, SC En
Banc Resolution dated February 19, 2008
ADDITIONAL GUIDELINES FOR THE IMPLEMENTATION
OF THE MOA BETWEEN OCA AND OSG ON NOTARIAL
REGISTERS.
Sec. 12. Competent Evidence of Identity.- The
phrase Competent evidence of identity refers to the
identification of an individual based on:
(a) at least one current identification document issued
by an official agency bearing the photograph and
signature of the individual, such as but not limited to,
passport, drivers license, Professional Regulations
Commission ID, National Bureau of Investigation
clearance, police clearance, postal ID, voters ID,
Barangay certification, Government Service and
Insurance System (GSIS) e-card, Social Security
System (SSS) card, Philhealth card, senior citizen card,
Overseas Workers Welfare Administration (OWWA)
ID, OFW ID, seamans book, alien certificate of
registration/immigrant certificate of registration,
government office ID, certificate from the National
Council for the Welfare of Disabled Persons (NCWDP),
Department of Social Welfare and Development
(DSWD) certification; or
(b) xxxxx.
B. Ex-Officio Notaries Public
1. Power of Municipal Trial Court and Municipal
Circuit Trial Court judges to act as Notaries Public
Ex Officio, Supreme Court Circular 1-90, February
26, 1990
TO: ALL JUDGES OF THE METROPOLITAN TRIAL COURTS
(METC), MUNICIPAL TRIAL COURTS IN CITIES (MTCC),
MUNICIPAL TRIAL COURTS (MTC), MUNICIPAL CIRCUIT
TRIAL COURTS (MCTC) SHARIA COURTS AND THE
INTEGRATED BAR OF THE PHILIPPINES (IBP)
SUBJECT: POWER OF THE MUNICIPAL TRIAL COURT
JUDGES AND MUNICIPAL CIRCUIT TRIAL COURT JUDGES
TO ACT AS NOTARIES PUBLICEX OFFICIO.
"Municipal Trial Court (MTC) and Municipal Circuit Trial
Court (MCTC) judges are empowered to perform the
function of Notaries Public ex officio under Section 76
of Republic Act No. 296, as amended [otherwise known
as the Judiciary Act of 1948] and Section 242 of the
Revised Administrative Code. But the Court hereby lays
down the following qualifications on the scope of this
power:
"MTC and MCTC judges may act as Notaries Public ex
officio in the notarization of documents connected only
with the exercise of their official functions and duties
They may not, as Notaries Public ex officio, undertake
the preparation and acknowledgment of private
documents, contracts and other acts of conveyances
which bear no direct relation to the performance of
their functions as judges. The 1989 Code of Judicial
Conduct not only enjoins judges to regulate their extra-
judicial activities in order to minimize the risk of
conflict with their judicial duties, but also prohibits
them from engaging in the private practice of law
[Canon 5 and Rule 5.07].
"However, the Court taking judicial notice of the fact
that there are still municipalities which have neither
lawyers nor notaries public, rules that MTC and MCTC
judges assigned to municipalities or circuits with no
lawyers or notaries public may, in the capacity as
notaries public ex officio, perform any act within the
competency of a regular notary public: Provided, That:
[1] all notarial fees charged be for the account of the
Government and turned over to the municipal treasurer
and [2] certification be made in the notarized
documents attesting to the lack of any lawyer or notary
public in such municipality or circuit."
2. Guidelines relative to printing and distribution of
notarial books, 2004 Rules on Notarial Practice,
A.M. No. 02-8-13-SC, SC En Banc Resolution dated
August 15, 2006
Re: 2004 Rules on Notarial Practice
The Court Resolved to
a) APPROVE the Proposed Guidelines in the
Implementation of the Provisions of the Memorandum
of Agreement between the Office of the Court
Administrator(OCA) and the Office of the Solicitor
General(OSG) relative to printing and distribution of
Notarial Books, to wit:
1. Notaries public who render legal and notarial
services within the National Capital Judicial Region
(NCJR) shall secure their notarial registers from
the Property Division, Office of the Administrative
Services of the OCA
2. Notaries public in other judicial regions shall
secure their notarial registers from the Office of
the Clerk of Court (OCC) of the RTC of the city or
province under the supervision of the Executive
Judge who issued their respective notarial
commissions. However, they may also secure
notarial registers from the OCA.
3. Notarial registers shall be available at P1,200.00
each. Said amount shall cover only the costs of
printing and binding of the notarial registers
exclusive of shipping charges when sold in the
provinces. Payments shall be made either to the
Cash Division, Financial Management Office, OCA,
or to the Clerk of Court/accountable officer in the
OCC of the RTC, as the case may be.
a. The amount collected shall be receipted and
deposited to a separate account of the fiduciary
fund to be known as the Notarial Register Fund
(NRF).
b. The Cash Division, FMO, OCA, shall maintain with
the Land Bank of the Philippines a separate
special account of the fiduciary fund specifically
for the NRF. A separate cashbook shall also be
kept and maintained for the fund. Withdrawals
of deposits shall be made only upon authorization
or approval by the Chief Justice or his duly
authorized representative.
c. The Court Administrator and the Financial
Office of the OCA shall be the authorized
signatories for this fund.
4. In view of the current unavailability of notarial
registers, notaries public shall be allowed to use
the temporary form attached hereto. The notary
public concerned shall file a written request to use
the improvised form with the executive judge that
issued his commission. A copy of his current
commission shall be attached to such request.
The notaries public who have been authorized to
use such forms shall have them book-bound and
initialed on each and every page by the executive
judge before whom the request was filed. Each
bound copy shall have a maximum of 106 pages and
 shall be treated and used in the same manner as
the new notarial book.
Each request shall be limited to one bound copy.
Should the bound copy be used up before the new
notarial books are available, the notary public
concerned may request anew for the use of bound
temporary forms. The use of bound temporary
forms shall end when the new notarial books are
available but, upon written request, the executive
judge may allow the notary public to use up the
bound temporary forms.
5. The OCA shall, within the first 10 days of the
first month of every quarter remit to the OSJ
an amount equivalent to 10% of the gross
collections during the preceding quarter as the
share of the OSG in the sale of the notarial
registers.
6. The printed certification of the Court
Administrator as to the number of pages of each
notarial register shall be countersigned by the ff:
a. In the NCJR, the official of the OCA authorized
by the Court Administrator to so countersign; &
b. In the case of the other judicial regions, the
Clerk of Court of the RTC of the city or province
where such book has been obtained for cost.
7. The SC Printing Office shall print the notarial
registers. In the event the Printing Office cannot
meet the requirements of the OCA, and subject to
Republic Act No. 9184 (Government Procurement
Reform Act), its IRR, and existing SC issuances on
procurement, the Court Administrator may
contract out the printing of notarial registers to
the following printers in the following order:
a. UP Printing Services
b. The National Printing Office, or
c. Private printing firm
The OCA shall resort to the third option only if the
first two printers cannot accommodate the
requirements of the Court.
After the approval by the Court of these
guidelines, the OCA shall disseminate the same
through a circular.
b) DENY for lack of merit the motion filed by Chief
Public Attorney Persida V. Rueda-Acosta, praying for a
reconsideration of the resolution of January 31, 2006
which denied her request for the exemption of PAO
lawyers from the payment of the fees for notarial
commission and for the exemption of their clients from
the payment of filing fees;
c) NOTE the letter dated September 5, 2005 of Mr.
Prescillano Y. Aguinias, Jr.;
d) CONFIRM the opinions of then Court Administrator
Presbitero J. Velasco, Jr. and Deputy Court
Administrator Jose P. Perez that the Court does not
render advisory opinions;
e) INFORM Mr. Agunias, Jr. that neither does the
Subcommittee on Revision of Rules Governing Notaries
Public render advisory opinions;
f) AUTHORIZE the Clerks of Court of the RTCs to
notarize not only documents relating to the exercise of
their official functions but also private documents,
subject to the following conditions: (i) all notarial fees
charged in accordance with Section 7(o) of Rule 141 of
the Rules of Court, and, with respect to private
documents, in accordance with the notarial fee that the
Supreme Court may prescribe in compliance with
Section 1, Rule V of the 2004 Rules on Notarial
Practice, shall be for the account of the Judiciary and
(ii) they certify in the notarized documents that there
are no notaries public within the territorial jurisdiction
of the Regional Trial Court;
g) DIRECT the Court Administrator to issue a circular
for the purpose of implementing the above authority; &
h) ADOPT a consolidated and uniform rate of fees for
notarial services. Corona, J., on leave. Azcuna, J.,
abroad on official business.
Very truly yours,
(SGD.) MA. LUISA D. VILLARAMA
Clerk of Court
3. Cruz v. Centron, 442 SCRA 53 (2004)
4. Tigno v. Spouses Aquino, 444 SCRA 61
5. Fuentes v. Buno, 560 SCRA 22
C. Notarized Document as a Public
Instrument
1. Vda. De Rosales v. Ramos, 383 SCRA 498
2. Dela Cruz v. Zabala, 442 SCRA 407
3. Lee v. Tambago, 544 SCRA 393
4. Dela Cruz v. Dimaano, 565 SCRA 1
D. Admissibility of Documents
1. Classes of documents and Proof of private
documents, Sections 19 & 20, Rule 132 of the
Revised Rules on Evidence
SEC. 19. Classes of documents. For the purpose of
their presentation in evidence, documents are either
public or private.
Public documents are:
(a) The written official acts, or records of the official
acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public
except last wills and testaments; and
(c) Public records, kept in the Philippines, of private
documents required by law to be entered therein.
All other writings are private. (20a)
SEC. 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. (21a)
2. Public documents as evidence and Proof of notarial
documents, Sections 23 & 30, Rule 132 of the
Revised Rules on Evidence
SEC. 23. Public documents as evidence. Documents
consisting of entries in public records made in the
performance of a duty by a public officer are prima
facie evidence of the facts therein stated. All other
public documents are evidence, even against a third
person, of the fact which gave rise to their execution
and of the date of the latter. (24a)
SEC. 30. Proof of notarial documents. Every
instrument duly acknowledged or proved and certified
as provided by law, may be presented in evidence
without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved. (31a)
3. Heirs of Amparo Del Rosario v. Santos, 108
SCRA 43
4. Permanent Savings and Loan Bank v. Velarde, 439
SCRA 1
E. Validity of Contracts
General Rule: A defective notarization does not
affect the validity of a contract.
1. Chong v. Court of Appeals, G.R. No. 148280, July 10,
2007
2. Competent evidence of the affiants identity The
President of the Church of Jesus Christ of Latter Day
Saints v. BTL Construction Corporation, G.R. No.
176439, February 26, 2007
Exceptions: Where the law requires notarization as a
requisite for validity.
1. Donation of immovable property
a. Article 749 of the Civil Code
Art. 749. In order that the donation of an immovable
may be valid, it must be made in a public document,
specifying therein the property donated and the value
of the charges which the donee must satisfy.
The acceptance may 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 donor.
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. (633)
b. Quilala v. Alcantara, 371 SCRA 311
c. Abellana v. Spouses Ponce, 437 SCRA 531
2. Partnership where immovable is contributed
a. Article 1771 to 1773 of the Civil Code
Art. 1771. A partnership may be constituted in any
form, except where immovable property or real rights
are contributed thereto, in which case a public
instrument shall be necessary. (1667a)
Art. 1772. Every contract of partnership having a
capital of three thousand pesos or more, in money or
property, shall appear in a public instrument, which
must be recorded in the Office of the Securities and
Exchange Commission.
Failure to comply with the requirements of the
preceding paragraph shall not affect the liability of the
partnership and the members thereof to third persons.
Art. 1773. A contract of partnership is void, whenever
immovable property is contributed thereto, if an
inventory of said property is not made, signed by the
parties, and attached to the public instrument. (1668a)
3. Notarial Will
a. Article 805 and 806 of the Civil Code
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator
himself or by the testators name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to them.
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. (n)
b. Garcia v. Gatchalian, 21 SCRA 1056
c. Azuela v. Court of Appeals, 487 SCRA 119
4. Registration of Documents
a. Forms in conveyancing Section 112 of PD.
No. 1528 or the Property Registration Decree
Section 112. Forms in conveyancing. The
Commissioner of Land Registration shall prepare
convenient blank forms as may be necessary to help
facilitate the proceedings in land registration and shall
take charge of the printing of land title forms.
Deeds, conveyances, encumbrances, discharges, powers
of attorney and other voluntary instruments, whether
affecting registered or unregistered land, executed in
accordance with law in the form of public instruments
shall be registerable: Provided, that, every such
instrument shall be signed by the person or persons
executing the same in the presence of at least two
witnesses who shall likewise sign thereon, and shall
acknowledged to be the free act and deed of the
person or persons executing the same before a notary
public or other public officer authorized by law to take
acknowledgment. Where the instrument so
acknowledged consists of two or more pages including
the page whereon acknowledgment is written, each page
of the copy which is to be registered in the office of
the Register of Deeds, or if registration is not
contemplated, each page of the copy to be kept by the
notary public, except the page where the signatures
already appear at the foot of the instrument, shall be
signed on the left margin thereof by the person or
persons executing the instrument and their witnesses,
and all the ages sealed with the notarial seal, and this
fact as well as the number of pages shall be stated in
the acknowledgment. Where the instrument
acknowledged relates to a sale, transfer, mortgage or
encumbrance of two or more parcels of land, the
number thereof shall likewise be set forth in said
acknowledgment.
5. Transfer of Ownership
a. Delivery of the thing sold Articles 1498 and
1544 of the Civil Code
Art. 1498. When the sale is made through a public
instrument, the execution thereof shall be equivalent to
the delivery of the thing which is the object of the
contract, if from the deed the contrary does not
appear or cannot clearly be inferred.
With regard to movable property, its delivery
may also be made by the delivery of the keys of the
place or depository where it is stored or kept. (1463a)
Art. 1544. If the same thing should have been sold to
different vendees, the ownership shall be transferred
to the person who may have first taken possession
thereof in good faith, if it should be movable property.
Should it be immovable property, the ownership shall
belong to the person acquiring it who in good faith first
recorded it in the Registry of Property.
Should there be no inscription, the ownership
shall pertain to the person who in good faith was first in
the possession; and, in the absence thereof, to the
person who presents the oldest title, provided there is
good faith. (1473)
b. Dy, Jr. v. Court of Appeals, 198 SCRA 826
6. Effectivity as against Third Persons
a. Assignment of credits and Partnership having a
capital of P3,000.00 or more Articles 1625 and
1772 of the Civil Code
Art. 1625. An assignment of a credit, right or action
shall produce no effect as against third person, unless
it appears in a public instrument, or the instrument is
recorded in the Registry of Property in case the
assignment involves real property. (1526)
Art. 1772. Every contract of partnership having a
capital of three thousand pesos or more, in money or
property, shall appear in a public instrument, which
must be recorded in the Office of the Securities and
Exchange Commission.
Failure to comply with the requirements of the
preceding paragraph shall not affect the liability of the
partnership and the members thereof to third persons.
b. Marriage settlements Article 77 of the
Family Code
Art. 77. The marriage settlements and any modification
thereof shall be in writing, signed by the parties and
executed before the celebration of the marriage. They
shall not prejudice third persons unless they are
registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries
of properties. (122a)
c. Santiago v. Pioneer Savings and Loan Bank,
157 SCRA 100
F. Notarial Acts
a. Jurat Section 6, Rule II of the 2004 Rules on
Notarial Practice
b. Acknowledgment Section 1, Rule II
Gamildo v. New Bilibid Prisons, 242 SCRA 83
c. Affirmation or Oath Section 2, Rule II
d. Commission Section 3, Rule II
e. Copy certification Section 4, Rule II
f. Notarial Register Section 5, Rule II
g. Notarial Certificate Section 8, Rule II
h. Competent Evidence of Identity Section 12,
i. Signature witnessing Section 14, Rule II
j. Authority to certify the affixing of a signature by
thumb or other mark Section 1(b), Rule IV
k. Signing on behalf of a person physically unable to
sign or make a mark Section 1(c), Rule IV
BASIC LEGAL FORMS
1. Affidavit
An affidavit is a written sworn statement of fact
voluntarily made by an affiant or deponent under an
oath or affirmation administered by a person
authorized to do so by law. Such statement is witnessed
as to the authenticity of the affiants signature by a
taker of oaths, such as a notary public or commissioner
of oaths. The name is Medieval Latin for he has
declared upon oath. An affidavit is a type of verified
statement or showing, or in other words, it contains a
verification, meaning it is under oath or penalty of
perjury, and this serves as evidence to its veracity and
is required for court proceedings.
To obtain a declaration on a legal document, such
as an application for voter registration, that the
information provided by the applicant is truthful
to the best of the applicants knowledge. If,
after signing such a declaration, the information
is found to be deliberately untrue with the intent
to deceive, the applicant may face perjury
charges.
Affidavits may be written in the first or third
person, depending on who drafted the document. If in
the first person, the documents component parts are:
a. a commencement which identifies the affiant;
b. the individual averments, almost always numbered
as mandated by law, each one making a separate
claim;
c. a statement of truth generally stating that
everything is true, under penalty of perjury, fine,
or imprisonment;
d. an attestation clause, usually a jurat, at the end
certifying the affiant made oath and the date; &
e. signatures of the author and witness.
If an affidavit is notarized or authenticated, it
will also include a caption with a venue and title in
reference to judicial proceedings. In some cases, an
introductory clause, called a preamble, is added
attesting that the affiant personally appeared before
the authenticating authority.
2. Special Power of Attorney Article 1878, CC
Art. 1878. Special powers of attorney are necessary in
the following cases:
(1) To make such payments as are not usually considered
as acts of administration;
(2) To effect novations which put an end to obligations
already in existence at the time the agency was
constituted;
(3) To compromise, to submit questions to arbitration,
to renounce the right to appeal from a judgment, to
waive objections to the venue of an action or to abandon
a prescription already acquired;
(4) To waive any obligation gratuitously;
(5) To enter into any contract by which the ownership
of an immovable is transmitted or acquired either
gratuitously or for a valuable consideration;
(6) To make gifts, except customary ones for charity or
those made to employees in the business managed by
the agent;
(7) To loan or borrow money, unless the latter act be
urgent and indispensable for the preservation of the
things which are under administration;
(8) To lease any real property to another person for
more than one year;
(9) To bind the principal to render some service without
compensation;
(10) To bind the principal in a contract of partnership;
(11) To obligate the principal as a guarantor or surety;
(12) To create or convey real rights over immovable
property;
(13) To accept or repudiate an inheritance;
(14) To ratify or recognize obligations contracted
before the agency;
(15) Any other act of strict dominion.
2. Last Will and Testament
A legal document that communicates a person's final
wishes, as pertaining to possessions and dependents. A
person's last will and testament will outline what to do
with possessions, whether they are being left to
another person, group or donated to charity, and what
will happen to other things for which they are
responsible, such as custody of dependents and
accounts and interests management.
A will is written while a person is alive and carried out
once they've passed away. In the will, a still-living
person is named as the executor of the estate, and that
person is responsible for administering the estate and
is usually supervised by the probate court to ensure
that what is specified in the will is carried out.
a. Notarial Will Art. 805 and 806 of the CC
b. Holographic Will Art. 810 to 814 of the CC
Art. 810. A person may execute a holographic will
which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no
other form, and may be made in or out of the
Philippines, and need not be witnessed. (678, 688a)
Art. 811. In the probate of a holographic will, it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to. (619a)
Art. 812. In holographic wills, the dispositions of the
testator written below his signature must be dated and
signed by him in order to make them valid as
testamentary dispositions. (n)
Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the
last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions. (n)
Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature. (n)
3. Release, Waiver and Quitclaim Article 6 of the
Civil Code
Art. 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
good customs, or prejudicial to a third person with a
right recognized by law.
(SAMPLE) RELEASE WAIVER AND QUITCLAIM
KNOW ALL MEN BY THESE PRESENTS:
That I, _, Filipino, of legal age, a resident of _,
and formerly employed with ___, do by these presents
acknowledge receipt of the sum of ____, Philippine
Currency, from ___ in full payment and final settlement
of the (financial assistance or separation pay, overtime
pay, salary or salaries, wage or wages, commutable sick
and vacation leaves, gratuities or any kind of
compensation or emoluments) due to me or which may
be due to me from ___ under the law or under any
existing agreement with respect thereto, as well as any
and all claims of whatever kind and nature which I have
or may have against ___, arising from my employment
with (and the termination of my employment with ___.
In consideration of said payment, I do hereby
quitclaim, release, discharge and waive any and all
actions of whatever nature, expected, real or apparent,
which I may have against ____, its directors, officers,
employees, agents and clients by reason of or arising
from my employment with the company. I will institute
no action, whether civil, criminal, labor or administrative
against ____, its directors, officers, employees, agents
and clients. Any and all actions which I may have
commenced either solely in my name or jointly with
others before any office, board, bureau, court, or
tribunal against ___, its directors, officers, employees,
agents and clients are hereby deemed and considered
voluntary withdrawn by me and I will no longer testify
or continue to prosecute said action(s).
I declare that I have read this document and
have fully understood its contents. I further declare
that I voluntarily and willingly executed this Release,
Waiver and Quitclaim with full knowledge of my rights
under the law.
IN WITNESS WHEREOF, I have hereunto set my
hand at _____, this ___ day of __, 2000.
 ___________
Affiant
SIGNED IN THE PRESENCE OF
________________ _________________
5. Demand Letter
A demand letter, or LOD, i.e. a Letter Of Demand (of
payment), is letter stating a legal claim (usually drafted
by a lawyer) which makes a demand for restitution or
performance of some obligation, owing to the
recipients' alleged breach of contract, or for a legal
wrong. Although demand letters are not legally required
they are frequently used, especially in contract law,
tort law, and commercial law cases. For example, if one
anticipate a breach, it is advantageous to send a demand
letter asserting that the other side appears to be in
breach and requesting assurances of performances.
Demand letters that are not responded to may
constitute admissions by silence. Also, a demand letter
will often generate a denial letter stating the basis for
rejecting your side's claim, and is sometimes a good
indication of what defenses will be raised if suit is
brought later
a. Demand Letter preparatory to filling an ejectment
case Section 2, Rule 70 of the Rules of Court
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Section 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding
section, a person deprived of the possession of any land
or building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is
unlawfully withheld after the expiration or termination
of the right to hold possession, by virtue of any
contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person, may, at any time within one (1)
year after such unlawful deprivation or withholding of
possession, bring an action in the proper Municipal Trial
Court against the person or persons unlawfully
withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such
possession, together with damages and costs.
Sec. 2. Lessor to proceed against lessee only after
demand.
Unless otherwise stipulated, such action by the lessor
shall be commenced only after demand to pay or comply
with the conditions of the lease and to vacate is made
upon the lessee, or by serving written notice of such
demand upon the person found on the premises, or by
posting such notice on the premises if no person be
found thereon, and the lessee fails to comply therewith
after fifteen (15) days in the case of land or five (5)
days in the case of buildings.
b. Demand letter preparatory to filing a complaint
for violation of Batas Pambansa Blg. 22
BATAS PAMBANSA BLG. 22: AN ACT PENALIZING THE
MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT
SUFFICIENT FUNDS OR CREDIT AND FOR OTHER PURPOSES.
Section 1. Checks without sufficient funds. Any
person who makes or draws and issues any check to
apply on account or for value, knowing at the time of
issue that he does not have sufficient funds in or credit
with the drawee bank for the payment of such check in
full upon its presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the
same reason had not the drawer, without any valid
reason, ordered the bank to stop payment, shall be
punished by imprisonment of not less than thirty days
but not more than one (1) year or by a fine of not less
than but not more than double the amount of the check
which fine shall in no case exceed Two Hundred
Thousand Pesos, or both such fine and imprisonment at
the discretion of the court.
The same penalty shall be imposed upon any person who,
having sufficient funds in or credit with the drawee
bank when he makes or draws and issues a check, shall
fail to keep sufficient funds or to maintain a credit to
cover the full amount of the check if presented within a
period of ninety (90) days from the date appearing
thereon, for which reason it is dishonored by the
drawee bank.
Where the check is drawn by a corporation, company or
entity, the person or persons who actually signed the
check in behalf of such drawer shall be liable under this
Act.
Sec. 2. Evidence of knowledge of insufficient
funds. The making, drawing and issuance of a check
payment of which is refused by the drawee because of
insufficient funds in or credit with such bank, when
presented within ninety (90) days from the date of the
check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit unless such maker
or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by
the drawee of such check within (5) banking days after
receiving notice that such check has not been paid by
the drawee.
Sec. 3. Duty of drawee; rules of evidence. It shall
be the duty of the drawee of any check, when refusing
to pay the same to the holder thereof upon
presentment, to cause to be written, printed, or
stamped in plain language thereon, or attached thereto,
the reason for drawees dishonor or refusal to pay the
same: Provided, That where there are no sufficient
funds in or credit with such drawee bank, such fact
shall always be explicitly stated in the notice of
dishonor or refusal. In all prosecutions under this Act,
the introduction in evidence of any unpaid and
dishonored check, having the drawees refusal to pay
stamped or written thereon or attached thereto, with
the reason therefor as aforesaid, shall be prima facie
evidence of the making or issuance of said check, and
the due presentment to the drawee for payment and
the dishonor thereof, and that the same was properly
dishonored for the reason written, stamped or attached
by the drawee on such dishonored check.
Notwithstanding receipt of an order to stop payment,
the drawee shall state in the notice that there were no
sufficient funds in or credit with such bank for the
payment in full of such check, if such be the fact.
Sec. 4. Credit construed. The word credit as used administration shall be published in a newspaper of
herein shall be construed to mean an arrangement or
understanding with the bank for the payment of such
check.
Sec. 5. Liability under the Revised Penal Code.
Prosecution under this Act shall be without prejudice to
any liability for violation of any provision of the RPC.
Sec. 6. Separability clause. If any separable
provision of this Act be declared unconstitutional, the
remaining provisions shall continue to be in force.
Sec. 7. Effectivity. This Act shall take effect
fifteen days after publication in the Official Gazette.
FORMS OF CONTRACTS
1. Extra-Judicial Settlement Secs. 1 and 2, Rule
74 of the Rules of Court
RULE 74: SUMMARY SETTLEMENT OF ESTATES
Sec. 1. Extrajudicial settlement by agreement
between heirs. - If the decedent left no will and no
debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives
duly authorized for the purpose, the parties may,
without securing letters of administration, divide the
estate among themselves as they see fit by means of a
public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an
ordinary action of partition. If there is only one heir, he
may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of
deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a
pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means of an
affidavit shall file, simultaneously with and as a
condition precedent to the filing of the public
instrument, or stipulation in the action for partition, or
of the affidavit in the office of the register of deeds,
a bond with the said register of deeds, in an amount
equivalent to the value of the personal property
involved as certified to under oath by the parties
concerned and conditioned upon the payment of any just
claim that may be filed under Section 4 of this rule. It
shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration
within two (2) years after the death of the decedent.
The fact of the extrajudicial settlement or
general circulation in the manner provided in the next
succeeding section; but no extrajudicial settlement
shall be binding upon any person who has not
participated therein or had no notice thereof.
Sec. 2. Summary settlement of estates of small
value. Whenever the gross value of the estate of a
deceased person, whether he died testate or intestate,
does not exceed ten thousand pesos, and that fact is
made to appear to the CFI having jurisdiction of the
estate by the petition of an interested person and upon
hearing, which shall be held not less than (1) month nor
more than three (3) months from the date of the last
publication of a notice which shall be published once a
week for three (3) consecutive weeks in a newspaper of
general circulation in the province, and after such other
notice to interested persons as the court may direct,
the court may proceed summarily, without the
appointment of an executor or administrator, and
without delay, to grant, if proper, allowance of the will,
if any there be, to determine who are the persons
legally entitled to participate in the estate, and to
apportion and divide it among them after the payment
of such debts of the estate as the court shall then find
to be due; and such persons, in their own right, if they
are of lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and
enter into the possession of the portions of the estate
so awarded to them respectively. The court shall make
such order as may be just respecting the costs of the
proceedings, and all orders and judgments made or
rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award,
if it involves real estate, shall be recorded in the
proper registers office.
2. Affidavit of Self-Adjudication (sample)
REPUBLIC OF THE PHILIPPINES)
PROVINCE OF AAA ) S.S.
MUNICIPALITY OF BBB )
AFFIDAVIT OF SELF-ADJUDICATION
I, ABC, of legal age, Filipino, single and a resident of
No. 123 Municipality of AAA, Province of BBB,
Philippines, after having been duly sworn in accordance
with law, do hereby depose and say:
1. That I am the only daughter of X who died intestate
in the Municipality of AAA, Province of BBB, on April
08, 2002 as evidenced by Death Certificate issued by
the Municipality of AAA, Province of BBB, hereto
attached as ANNEX A and made an integral part of
this Affidavit;
2. That the said deceased left deposit in the Rural Bank
of AAA, Inc., in the amount of P300,000;
3. That the said deceased left no debts;
4. That pursuant to Rule 74, Sec. 1 of the Rules of
Court, I hereby adjudicate unto myself the above
described real estate by means of this Affidavit and
hereby files the same with the Register of Deed of BBB
with the request that the said adjudication be made
effective without judicial proceeding as prescribed by
the aforementioned Rules of Court.
IN WITNESS WHEREOF, I have set my hand this _ day of
_ 2011 at Municipality of A, Province of B, Philippines.
ABC
Affiant
SUBSCRIBED AND SWORN before me this _ day of _ 2011
at Municipality of AAA, Province of BBB, Philippines.
CCC
Notary Public
Commission to expire:______
IBP No., Place, Date
PTR No., Place, Date
Doc. No.______;
Page No. _____ ;
Book No. _____ ;
Series of ______
3. Deed of Sale of Registered Land
KNOW ALL MEN BY THESE PRESENTS:
This Deed of Absolute Sale, made and entered this ___
day of March 2000, in Quezon City, Metro Manila, by
and between:
CONCHITA L. HANOPOL, of legal age, Filipino, widow, and
with postal address at No. 33, Kamias Road, Quezon
City, hereinafter referred to as the SELLER;
and
STANFORD LEE, of legal age, Filipino, with residence
address at 58 Kamagong Street, Ayala Alabang Village,
Muntinlupa City, Metro Manila hereinafter referred to
as the BUYER.
WITNESSETH: THAT
WHEREAS, the SELLER is the registered lawful and
actual possessor of a certain parcel of land situated in
San Pablo City, Province of Laguna, and more
particularly described and bounded as follows:
TCT No. T-9132
A PARCEL OF LAND (Lot 32 of the consolidation-
subdivision plan (LRC) Pcs-5141, being a portion of the
consolidation of Lots 1 and 2, Psu-112287 Amd., LRC
(GLRO) Rec. No. N-17511), situated in the Dist. Of
Concepcion, City of Sta. Rosa, Laguna, Island of Luzon.
Bounded on the NE., points 3 to 6, by Lot 85; on the S.,
points 6 to 1 by Lot 30; on the SW., points 1 to 2, by Lot
31; and on the N., points 2 to 3 by Lot 35, all of the
consolidation-subdivision plan. Beginning at a pont
marked 1 on plan, being N. 51 deg. 36 E., 1321.76 m.
from B.L.L.M. No.1, Sta. Rosa, Laguna xxxxxxxx (a copy
of which title is hereto attached as Annex A)
WHEREAS, the SELLER is willing to sell and the BUYER is
willing to buy the above-described real estate property;
NOW, THEREFORE, for and in consideration of the amount
of FIVE HUNDRED THOUSAND PESOS (P500,000.00),
Philippine Currency, receipt in full is hereby
acknowledged by the SELLER to her satisfaction, the
SELLER SELLS, CEDES, TRANSFERS and CONVEYS in
a manner that is absolute and irrevocable the above real
property unto the BUYER, his heirs, assigns and
successors-in-interest.
The SELLER warrants that she can transfer the title
and possession of the aforesaid real estate property to
the BUYER and that there are no other transactions
pending registration with the Registry of Deeds in Sta.
Cruz, Laguna that will adversely affect the rights of
the BUYER.
THAT any and all expenses incidental to the
registration and conveyance of the title from the name
of the SELLER to the name of the BUYER such as
Transfer Tax, Documentary Tax, registration expenses
and the like shall be the sole and exclusive account of
the BUYER: provided, that capital gains tax shall be for
the account of the SELLER.
IN WITNESS WHEREOF, the parties have hereunto signed
this DEED OF ABSOLUTE SALE this ___ day of March
2000 at the date and place first above mentioned.
CONCHITA L. HANOPOL STANDFORD LEE
Seller Buyer
TIN No: TIN No.:
Signed in the presence of:
________ ___________
ACKNOWLEDGEMENT
Republic of the Philippines)
Quezon City, Metro Manila ) S.S.
BEFORE ME, a Notary Public for and in Quezon City,
Metro Manila, personally appeared:
Name Conchita L. Hanopol Stanford Lee
CTC No.
Place
Date
known to me to be the same persons who executed the
foregoing document of DEED OF ABSOLUTE SALE and
they acknowledged to me that they executed the same
as their free and voluntary act and deed.
I HEREBY CERTIFY that the foregoing document consists
of three (3) pages including this page, and that the
parties and their witnesses signed their names and on
one (1) parcel of land covered by TCT No. T-9132 of the
Registry of Deeds of San Pablo City.
IN WITNESS WHEREOF, I have hereunto set may hand
and affixed my notarial seal this __ day of ___ 2000.
Notary Public
4. Contract of Lease with Right of First Refusal
TANAY RECREATION CENTER AND DEVELOPMENT CORP. V.
FAUSTO, G.R. No. 140182. April 12, 2005
The principal bone of contention in this case refers to
petitioners priority right to purchase, also referred to
as the right of first refusal.
Petitioners right of first refusal in this case is
expressly provided for in the notarized Contract of
Lease dated August 1, 1971, between Fausto and
petitioner, to wit:
7. That should the LESSOR decide to sell the leased
premises, the LESSEE shall have the priority right to
purchase the same;
When a lease contract contains a right of first refusal,
the lessor is under a legal duty to the lessee not to sell
to anybody at any price until after he has made an
offer to sell to the latter at a certain price and the
lessee has failed to accept it. The lessee has a right
that the lessors first offer shall be in his favor.
Petitioners right of first refusal is an integral and
indivisible part of the contract of lease and is
inseparable from the whole contract. The consideration
for the lease includes the consideration for the right of
first refusal and is built into the reciprocal obligations
of the parties.
5. Deed of Donation Article 725 to 773, CC
Chapter 1. Nature of Donations
Art. 725. Donation is an act of liberality whereby a
person disposes gratuitously of a thing or right in favor
of another, who accepts it. (618a)
Art. 726. When a person gives to another a thing or
right on account of the latters merits or of the
services rendered by him to the donor, provided they
do not constitute a demandable debt, or when the gift
imposes upon the done a burden which is less than the
value of the thing given, there is also a donation. (619)
Art. 727. Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not
imposed. (n)
Art. 728. Donations which are to take effect upon the
death of the donor partake of the nature of
testamentary provisions, and shall be governed by the
rules established in the Title on Succession. (620)
Art. 729. When the donor intends that the donation
shall take effect during the lifetime of the donor,
though the property shall not be delivered till after the
donors death, this shall be a donation inter vivos. The
Art. 737. The donors capacity shall be determined as
of the time of the making of the donation. (n)
Art. 738. Al those who are not specially disqualified by
law therefor may accept donations. (625)
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of

fruits of the property from the time of the acceptance adultery or concubinage at the time of the donation;

of the donation, shall pertain to the donee, unless the

(2) Those made between persons found guilty of the
donor provides otherwise. (n)
same criminal offense, in consideration thereof;

Art. 730. The fixing of an event or the imposition of a

(3) Those made to a public officer or his wife,
suspensive condition, which may take place beyond the
descendants and ascendants, by reason of his office.
natural expectation of life of the donor, does not
destroy the nature of the act as a donation inter vivos,
In the case referred to in No. 1, the action for
unless a contrary intention appears. (n)
declaration of nullity may be brought by the spouse of
the donor or donee; and the guilt of the donor and done
Art. 731. When a person donates something, subject
may be proved by preponderance of evidence in the
to the resolutory condition of the donors survival,
same action. (n)
there is a donation inter vivos. (n)

Art. 740. Incapacity to succeed by will shall be

Art. 732. Donations which are to take effect inter
applicable to donations inter vivos. (n)
vivos shall be governed by the general provisions on
contracts and obligations in all that is not determined in
Art. 741. Minors and others who cannot enter into a
this Title. (621)
contract may become donees but acceptance shall be
done through their parents or legal representatives.
Art. 733. Donations with an onerous cause shall be
governed by the rules on contracts and remuneratory
Art. 742. Donations made to conceived and unborn
donations by the provisions of the present Title as
children may be accepted by those persons who would
regards that portion which exceeds the value of the
legally represent them if they were already born. (627)
burden imposed. (622)

Art. 743. Donations made to incapacitated persons

Art. 734. The donation is perfected from the moment
shall be void, though simulated under the guise of
the donor knows of the acceptance by the donee. (623)
another contract or through a person who is interposed.

Chapter 2. Persons Who may Give or Receive a

Art. 744. Donations of the same thing to two or more
Donation
different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
Art. 735. All persons who may contract and dispose of
different persons. (n)
their property may make a donation. (624)

Art. 745. The donee must accept the donation

Art. 736. Guardians and trustees cannot donate the
personally, or through an authorized person with a
property entrusted to them. (n)
special power for the purpose, or with a general and
sufficient power; otherwise, the donation shall be void.
Art. 746. Acceptance must be made during the lifetime
of the donor and of the donee. (n)
Art. 747. Persons who accept donations in
representation of others who may not do so by
themselves, shall be obliged to make the notification
and notation of which Article 749 speaks. (631)
Art. 748. The donation of a movable may be made
orally or in writing.
An oral donation requires the simultaneous delivery of
the thing or of the document representing the right
donated.
If the value of the personal property donated exceeds
five thousand pesos, the donation and the acceptance
shall be made in writing, otherwise, the donation shall
be void. (632a)
Art. 749. In order that the donation of an immovable
may be valid, it must be made in a public document,
specifying therein the property donated and the value
of the charges which the donee must satisfy.
The acceptance may 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 donor.
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. (633)
Chapter 3. Effect of Donations and Limitations
Thereon
Art. 750. The donations may comprehend all the
present property of the donor, or part thereof,
provided he reserves, in full ownership or in usufruct,
sufficient means for the support of himself, and of all
relatives who, at the time of the acceptance of the
donation, are by law entitled to be supported by the
donor. Without such reservation, the donation shall be
reduced in petition of any person affected. (634a)
Art. 751. Donations cannot comprehend future
property.
By future property is understood anything which the
donor cannot dispose of at the time of the donation.
(635)
Art. 752. The provisions of Article 750
notwithstanding, no person may give or receive, by way
of donation, more than he may give or receive by will.
The donation shall be inofficious in all that it may
exceed this limitation. (636)
Art. 753. When a donation is made to several persons
jointly, it is understood to be in equal shares, and there
shall be no right of accretion among them, unless the
donor has otherwise provided.
The preceding paragraph shall not be applicable to
donations made to the husband and wife jointly,
between whom there shall be a right of accretion, if the
contrary has not been provided by the donor. (637)
Art. 754. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the
donor. The latter, on the other hand, is not obliged to
warrant the things donated, save when the donation is
onerous, in which case the donor shall be liable for
eviction to the concurrence of the burden.
The donor shall also be liable for eviction or hidden
defects in case of bad faith on his part. (638a)
Art. 755. The right to dispose of some of the things
donated, or of some amount which shall be a charge
thereon, may be reserved by the donor; but if he should
die without having made use of this right, the property
or amount reserved shall belong to the donee. (639)
Art. 756. The ownership of property may also be
donated to one person and the usufruct to another
or others, provided all the donees are living at the time
of the donation. (640a)
Art. 757. Reversion may be validly established in favor
of only the donor for any case and circumstances, but
not in favor of other persons unless they are all living at
the time of the donation.
Any reversion stipulated by the donor in favor of a
third person in violation of what is provided in the
preceding paragraph shall be void, but shall not nullify
the donation. (614a)
Art. 758. When the donation imposes upon
the donee the obligation to pay the debts of the donor,
if the clause does not contain any declaration to the
contrary, the former is understood to be liable to pay
only the debts which appear to have been previously
contracted. In no case shall the donee be responsible
for the debts exceeding the value of the property
donated, unless a contrary intention clearly appears.
(642a)
Art. 759. There being no stipulation regarding the
payment of debts, the donee shall be responsible
therefor only when the donation has been made in fraud
of creditors.
The donation is always presumed to be in fraud of
creditors, when at the time thereof the donor did not
reserve sufficient property to pay his debts prior to
the donation. (643)
Chapter 4. Revocation and Reduction of Donations
Art. 760. Every donation inter vivos, made by a person
having no children or descendants, legitimate or
legitimated by subsequent marriage, or illegitimate, may
be revoked or reduced as provided in the next article,
by the happening of any of these events:
(1) If the donor, after the donation, should have
legitimate or legitimated or illegitimate children, even
though they be posthumous;
(2) If the child of the donor, whom the latter believed
to be dead when he made the donation, should turn out
to be living;
(3) If the donor subsequently adopts a minor child.
Art. 761. In the cases referred to in the preceding
article, the donation shall be revoked or reduced
insofar as it exceeds the portion that may be freely
disposed of by will, taking into account the whole estate
of the donor at the time of the birth, appearance or
adoption of a child. (n)
Art. 762. Upon the revocation or reduction of the
donation by the birth, appearance or adoption of a child,
the property affected shall be returned or its value if
the done has sold the same.
If the property is mortgaged, the donor may redeem
the mortgage, by paying the amount guaranteed, with a
right to recover the same from the donee.
When the property cannot be returned, it shall be
estimated at what it was worth at the time of the
donation. (645a)
Art. 763. The action for revocation or reduction on
the grounds set forth in article 760 shall prescribe
after four years from the birth of the first child, or
from his legitimation, recognition or adoption, or from
the judicial declaration of filiation, or from the time
information was received regarding the existence of
the child believed dead.
This action cannot be renounced, and is transmitted,
upon the death of the donor, to his legitimate and
illegitimate children and descendants. (646a)
Art. 764. The donation shall be revoked at the
instance of the donor, when the donee fails to comply
with any of the conditions which the former imposed
upon the latter.
In this case, the property donated shall be returned to
the donor, the alienations made by the donee and the
mortgages imposed thereon by him being void, with the
limitations established, with regard to third persons, by
the Mortgage Law and the Land Registration Laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted
to the heirs of the donor, and may be exercised against
the donees heirs. (647a)
Art. 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the
following cases:
(1) If the donee should commit some offense against
the person, the honor or the property of the donor, or
of his wife or children under his parental authority;
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the act
has been committed against the donee himself, his wife
or children under his authority;
(3) If he unduly refuses him support when the donee is
legally or morally bound to give support to the donor.
Art. 766. Although the donation is revoked on account
of ingratitude, nevertheless, the alienations and
mortgages effected before the notation of the
complaint for revocation in the Registry of Property
shall subsist.
Later ones shall be void. (649)
Art. 767. In the case referred to in the first
paragraph of the preceding article, the donor shall have
a right to demand from the donee the value of property
alienated which he cannot recover from third persons,
or the sum for which the same has been mortgaged.
The value of said property shall be fixed as of the time
of the donation. (650)
Art. 768. When the donation is revoked for any of the
causes stated in Article 760, or by reason of
ingratitude, or when it is reduced because it is
inofficious, the done shall not return the fruits except
from the filing of the complaint.
If the revocation is based upon noncompliance with any
of the conditions imposed in the donation,
the donee shall return not only the property but also
the fruits thereof which he may have received after
having failed to fulfill the condition. (651)
Art. 769. The action granted to the donor by reason of
ingratitude cannot be renounced in advance. This action
prescribes within one year, to be counted from the time
the donor had knowledge of the fact and it was possible
for him to bring the action. (652)
Art. 770. This action shall not be transmitted to the
heirs of the donor, if the latter did not institute the
same, although he could have done so, and even if he
should die before the expiration of one year.
Neither can this action be brought against the heir of
the donee, unless upon the latters death the complaint
has been filed. (653)
Art. 771. Donations which in accordance with the
provisions of Article 752, are inofficious, bearing in
mind the estimated net value of the donors property at
the time of his death, shall be reduced with regard to
the excess; but this reduction shall not prevent the
donations from taking effect during the life of the
donor, nor shall it bar the donee from appropriating the
fruits.
For the reduction of donations the provisions of this
Chapter and ofArticles 911 and 912 of this Code shall
govern. (654)
Art. 772. Only those who at the time of the donors
death have a right to the legitime and their heirs and
successors in interest may ask for the reduction or
inofficious donations.
Those referred to in the preceding paragraph cannot
renounce their right during the lifetime of the donor,
either by express declaration, or by consenting to the
donation.
The donees, devisees and legatees, who are not entitled
to the legitimeand the creditors of the deceased can
neither ask for the reduction nor avail themselves
thereof. (655a)
Art. 773. If, there being two or more donations, the
disposable portion is not sufficient to cover all of them,
those of the more recent date shall be suppressed or
reduced with regard to the excess. (656)
6. Real Estate Mortgage Article 2085 to 2092,
2124 to 2131 of the Civil Code
Title XVI. Pledge, Mortgage and Antichresis
Chapter 1: Provisions Common to Pledge and
Mortgage
Art. 2085. The following requisites are essential to
the contracts of pledge and mortgage:
(1) That they be constituted to secure the fulfillment
of a principal obligation;
(2) That the pledgor or mortgagor be the absolute
owner of the thing pledged or mortgaged;
(3) That the persons constituting the pledge or
mortgage have the free disposal of their property, and
in the absence thereof, that they be legally authorized
for the purpose.
Third persons who are not parties to the principal
obligation may secure the latter by pledging or
mortgaging their own property. (1857)
Art. 2086. The provisions of Article 2052 are
applicable to a pledge or mortgage. (n)
Art. 2087. It is also of the essence of these contracts
that when the principal obligation becomes due, the
things in which the pledge or mortgage consists may be
alienated for the payment to the creditor. (1858)
Art. 2088. The creditor cannot appropriate the things
given by way of pledge or mortgage, or dispose of them.
Any stipulation to the contrary is null and void. (1859a)
Art. 2089. A pledge or mortgage is indivisible, even
though the debt may be divided among the successors
in interest of the debtor or of the creditor.
Therefore, the debtors heir who has paid a part of the
debt cannot ask for the proportionate extinguishment
of the pledge or mortgage as long as the debt is not
completely satisfied.
Neither can the creditors heir who received his share
of the debt return the pledge or cancel the mortgage,
to the prejudice of the other heirs who have not been
paid.
From these provisions is expected the case in which,
there being several things given in mortgage or pledge,
each one of them guarantees only a determinate portion
of the credit.
The debtor, in this case, shall have a right to the
extinguishment of the pledge or mortgage as the
portion of the debt for which each thing is specially
answerable is satisfied. (1860)
Art. 2090. The indivisibility of a pledge or mortgage is
not affected by the fact that the debtors are not
solidarily liable. (n)
Art. 2091. The contract of pledge or mortgage may
secure all kinds of obligations, be they pure or subject
to a suspensive or resolutory condition. (1861)
Art. 2092. A promise to constitute a pledge or
mortgage gives rise only to a personal action between
the contracting parties, without prejudice to the
criminal responsibility incurred by him who defrauds
another, by offering in pledge or mortgage as
unencumbered, things which he knew were subject to
some burden, or by misrepresenting himself to be the
owner of the same. (1862)
Chapter 3: Mortgage
Art. 2124. Only the following property may be the
object of a contract of mortgage:
(1) Immovables;
(2) Alienable real rights in accordance with the laws,
imposed upon immovables.
Nevertheless, movables may be the object of a chattel
mortgage. (1874a)
Art. 2125. In addition to the requisites stated in
Article 2085, it is indispensable, in order that a
mortgage may be validly constituted, that the document
in which it appears be recorded in the Registry of
Property. If the instrument is not recorded, the
mortgage is nevertheless binding between the parties.
The persons in whose favor the law establishes a
mortgage have no other right than to demand the
execution and the recording of the document in which
the mortgage is formalized. (1875a)
Art. 2126. The mortgage directly and immediately
subjects the property upon which it is imposed, whoever
the possessor may be, to the fulfillment of the
obligation for whose security it was constituted. (1876)
Art. 2127. The mortgage extends to the natural
accessions, to the improvements, growing fruits, and
the rents or income not yet received when the
obligation becomes due, and to the amount of the
indemnity granted or owing to the proprietor from the
insurers of the property mortgaged, or in virtue of
expropriation for public use, with the declarations,
amplifications and limitations established by law,
whether the estate remains in the possession of the
mortgagor, or it passes into the hands of a third
person. (1877)
Art. 2128. The mortgage credit may be alienated or
assigned to a third person, in whole or in part, with the
formalities required by law. (1878)
Art. 2129. The creditor may claim from a third person
in possession of the mortgaged property, the payment
of the part of the credit secured by the property which
said third person possesses, in the terms and with the
formalities which the law establishes. (1879)
Art. 2130. A stipulation forbidding the owner from
alienating the immovable mortgaged shall be void. (n)
Art. 2131. The form, extent and consequences of a
mortgage, both as to its constitution, modification and
extinguishment, and as to other matters not included in
this Chapter, shall be governed by the provisions of the
Mortgage Law and of the Land Registration Law.
(1880a)
7. Chattel Mortgage Article 2085 to 2123, 2140
to 2141 of the Civil Code; Act No. 1508, as
amended; with Affidavit of Good Faith
Chapter 5: Chattel Mortgage
Art. 2140. By a chattel mortgage, personal property is
recorded in the Chattel Mortgage Register as a
security for the performance of an obligation. If the
movable, instead of being recorded, is delivered to the
creditor or a third person, the contract is a pledge and
not a chattel mortgage. (n)
Art. 2141. The provisions of this Code on pledge,
insofar as they are not in conflict with the Chattel
Mortgage Law shall be applicable to chattel mortgages.
ACT NO. 1508: AN ACT PROVIDING FOR THE MORTGAGING OF
PERSONAL PROPERTY AND FOR THE REGISTRATION OF THE
MORTGAGES SO EXECUTED
Section 1. The short title of this Act shall be The
Chattel Mortgage Law.
Sec. 2. All personal property shall be subject to
mortgage, agreeably to the provisions of this Act, and a
mortgage executed in pursuance thereof shall be
termed chattel mortgage.
Sec. 3. Chattel mortgage defined. A chattel
mortgage is a conditional sale of personal property as
security for the payment of a debt, or the performance
of some other obligation specified therein, the
condition being that the sale shall be void upon the
seller paying to the purchaser a sum of money or doing
some other act named. If the condition is performed
according to its terms the mortgage and sale
immediately become void, and the mortgagee is thereby
divested of his title.
Sec. 4. Validity. A chattel mortgage shall not be
valid against any person except the mortgagor, his
executors or administrators, unless the possession of
the property is delivered to and retained by the
mortgagee or unless the mortgage is recorded in the
office of the register of deeds of the province in which
the mortgagor resides at the time of making the same,
or, if he resides without the Philippine Islands, in the
province in which the property is situated: Provided,
however, That if the property is situated in a different
province from that in which the mortgagor resides, the
mortgage shall be recorded in the office of the
register of deeds of both the province in which the
mortgagor resides and that in which the property is
situated, and for the purposes of this Act the city of
Manila shall be deemed to be a province.
Sec. 5. Form. A chattel mortgage shall be deemed
to be sufficient when made substantially in accordance
with the following form, and shall be signed by the
person or persons executing the same, in the presence
of two witnesses, who shall sign the mortgage as
witnesses to the execution thereof, and each mortgagor
and mortgagee, or, in the absence of the mortgagee, his
agent or attorney, shall make and subscribe an affidavit
in substance as hereinafter set forth, which affidavit,
signed by the parties to the mortgage as above stated,
and the certificate of the oath signed by the authority
administering the same, shall be appended to such
mortgage and recorded therewith.
FORM OF CHATTEL MORTGAGE AND AFFIDAVIT.
This mortgage made this __ day of ___19__ by ___, a
resident of the municipality of __, Province of ___,
Philippine Islands mortgagor, to __, a resident of the
municipality of ___, Province of ____, Philippine
Islands, mortgagee, witnesseth:
That the said mortgagor hereby conveys and
mortgages to the said mortgagee all of the following-
described personal property situated in the municipality
of ____, Province of ___ and now in the possession of
said mortgagor, to wit:
(Here insert specific description of the property
mortgaged.)
This mortgage is given as security for the payment to
the said __, mortgagee, of promissory notes for the
sum of __ pesos, with (or without, as the case may be)
interest thereon at the rate of _ per centum per
annum, according to the terms of _, certain promissory
notes, dated __, and in the words and figures following
(here insert copy of the note or notes secured).
(If the mortgage is given for the performance of some
other obligation aside from the payment of promissory
notes, describe correctly but concisely the obligation to
be performed.)
The conditions of this obligation are such that if the
mortgagor, his heirs, executors, or administrators shall
well and truly perform the full obligation (or
obligations) above stated according to the terms
thereof, then this obligation shall be null and void.
Executed at the municipality of __, in the Province of
________, this _____ day of 19_____
____________________
(Signature of mortgagor.)
In the presence of
_________________
_________________
(Two witnesses sign here.)
FORM OF OATH.
We severally swear that the foregoing mortgage is
made for the purpose of securing the obligation
specified in the conditions thereof, and for no other
purpose, and that the same is a just and valid obligation,
and one not entered into for the purpose of fraud.
FORM OF CERTIFICATE OF OATH.
At ___, in the Province of ____, personally appeared
___, the parties who signed the foregoing affidavit and
made oath to the truth thereof before me.
____________
(Notary public, justice of the peace, 1 or other officer,
as the case may be.)
Sec. 6. Corporations. When a corporation is a party
to such mortgage the affidavit required may be made
and subscribed by a director, trustee, cashier,
treasurer, or manager thereof, or by a person
authorized on the part of such corporation to make or
to receive such mortgage. When a partnership is a party
to the mortgage the affidavit may be made and
subscribed by one member thereof.
Sec. 7. Descriptions of property. The description of
the mortgaged property shall be such as to enable the
parties to the mortgage, or any other person, after
reasonable inquiry and investigation, to identify the
same.
If the property mortgaged be large cattle, as defined
by section one of Act Numbered Eleven and forty-
seven, 2 and the amendments thereof, the description
of said property in the mortgage shall contain the
brands, class, sex, age, knots of radiated hair commonly
known as remolinos, or cowlicks, and other marks of
ownership as described and set forth in the certificate
of ownership of said animal or animals, together with
the number and place of issue of such certificates of
ownership.
If growing crops be mortgaged the mortgage may
contain an agreement stipulating that the mortgagor
binds himself properly to tend, care for and protect the
crop while growing, and faithfully and without delay to
harvest the same, and that in default of the
performance of such duties the mortgage may enter
upon the premises, take all the necessary measures for
the protection of said crop, and retain possession
thereof and sell the same, and from the proceeds of
such sale pay all expenses incurred in caring for,
harvesting, and selling the crop and the amount of the
indebtedness or obligation secured by the mortgage,
and the surplus thereof, if any shall be paid to the
mortgagor or those entitled to the same.
A chattel mortgage shall be deemed to cover only the
property described therein and not like or substituted
property thereafter acquired by the mortgagor and
placed in the same depository as the property originally
mortgaged, anything in the mortgage to the contrary
notwithstanding.
Sec. 8. Failure of mortgagee to discharge the
mortgage. If the mortgagee, assign, administrator,
executor, or either of them, after performance of the
condition before or after the breach thereof, or after
tender of the performance of the condition, at or after
the time fixed for the performance, does not within ten
days after being requested thereto by any person
entitled to redeem, discharge the mortgage in the
manner provided by law, the person entitled to redeem
may recover of the person whose duty it is to discharge
the same twenty pesos for his neglect and all damages
occasioned thereby in an action in any court having
jurisdiction of the subject-matter thereof.
Sec. 9-12. (inclusive) 3
Sec. 13. When the condition of a chattel mortgage is
broken, a mortgagor or person holding a subsequent
mortgage, or a subsequent attaching creditor may
redeem the same by paying or delivering to the
mortgagee the amount due on such mortgage and the
reasonable costs and expenses incurred by such breach
of condition before the sale thereof. An attaching
creditor who so redeems shall be subrogated to the
rights of the mortgagee and entitled to foreclose the
mortgage in the same manner that the mortgagee could
foreclose it by the terms of this Act.
Sec. 14. Sale of property at public auction; Officers
return; Fees; Disposition of proceeds. The
mortgagee, his executor, administrator, or assign, may,
after thirty days from the time of condition broken,
cause the mortgaged property, or any part thereof, to
be sold at public auction by a public officer at a public
place in the municipality where the mortgagor resides,
or where the property is situated, provided at least ten
days notice of the time, place, and purpose of such sale
has been posted at two or more public places in such
municipality, and the mortgagee, his executor,
administrator, or assign, shall notify the mortgagor or
person holding under him and the persons holding
subsequent mortgages of the time and place of sale,
either by notice in writing directed to him or left at his
abode, if within the municipality, or sent by mail if he
does not reside in such municipality, at least ten days
previous to the sale.
The officer making the sale shall, within thirty days
thereafter, make in writing a return of his doings and
file the same in the office of the register of deeds
where the mortgage is recorded, and the register of
deeds shall record the same. The fees of the officer
for selling the property shall be the same as in the case
of sale on execution as provided in Act Numbered One
hundred and ninety, 4 and the amendments thereto, and
the fees of the register of deeds for registering the
officers return shall be taxed as a part of the costs of
sale, which the officer shall pay to the register of
deeds. The return shall particularly describe the
articles sold, and state the amount received for each
article, and shall operate as a discharge of the lien
thereon created by the mortgage. The proceeds of such
sale shall be applied to the payment, first, of the costs
and expenses of keeping and sale, and then to the
payment of the demand or obligation secured by such
mortgage, and the residue shall be paid to persons
holding subsequent mortgages in their order, and the
balance, after paying the mortgages, shall be paid to
the mortgagor or person holding under him on demand.
If the sale includes any large cattle, a certificate of
transfer as required by section sixteen of Act
Numbered Eleven hundred and forty-seven 5 shall be
issued by the treasurer of the municipality where the
sale was held to the purchaser thereof.
Sec. 15. 6, 6a
Sec. 16. This Act shall take effect on August first,
nineteen hundred and six.
Enacted, July 2, 1906.
Footnotes
1. Now Municipal judge.
2. Now section 511 of the Administrative Code.
3. Repealed by Act 3815, Article 367 approved
December 8, 1930.
4. Now Rule 141, section 7 of the Rules of Court.
5. Now Section 523 of the Administrative Code.
6. Superseded by section 198 of the Administrative
Code. The following is the present text of section 198
as amended by RA 2711, approved June 18, 1960.
SECTION 198. Registration of chattel mortgages
and fees collectible in connection therewith. Every
register of deeds shall keep a primary entry book and a
registration book for the chattel mortgages; shall
certify on each mortgage filed for record, as well as on
its duplicate, the date, hour, and minute when the same
was by him received; and shall record in such books any
chattel mortgage, assignment, or discharge thereof,
and any other instruments relating to a recorded
mortgage, and all such instruments shall be presented
to him in duplicate, the original to be filed and the
duplicate to be returned to the person concerned.
The recording of a mortgage shall be effected by
making an entry, which shall be given a correlative
number, setting forth the names of the mortgagee, and
the mortgagor, the sum or obligation guaranteed, date
of the instrument, name of the notary before whom it
was sworn to or acknowledged, and a note that the
property mortgaged, as well as the terms and conditions
of the mortgage, is mentioned in detail in the
instrument filed, giving the proper file number thereof.
The recording of other instruments relating to a
recorded mortgage shall be effected by way of
annotations on the space provided therefor in the
registration book, after the same shall have been
entered in the primary entry book.
The register of deeds shall also certify the officers
return of sale upon any mortgage, making reference
upon the record of such officers return to the volume
and page of the record of the mortgage, and a
reference of such return on the record of the
mortgage itself, and give a certified copy thereof, when
requested, upon payment of the lawful fees for such
copy; and certify upon each mortgage officers return
of sale or discharge of mortgage; and upon any other
instrument relating to such a recorded mortgage, both
on the original and on the duplicate, the date, hour, and
minute when the same is received for record and record
such certificate with the return itself and keep an
alphabetical index of mortgagors and mortgagees, which
record and index shall be open to public inspection.
Duly certified copies of such records and of filed
instruments shall be receivable as evidence in any court.
The register of deeds shall collect the following fees
for services rendered by him under this section:
(a) For entry or presentation of any document in the
primary entry book, one peso. Supporting papers
presented together with the principal document need
not be charged any entry or presentation fee unless the
party in interest desires that they be likewise entered.
(b) For filing and recording each chattel mortgage,
including the necessary certificates and affidavits, the
fees established in the following schedule shall be
collected:
1. When the amount of the mortgage does not exceed
six thousand pesos, three pesos and fifty centavos for
the first five hundred pesos or fractional part thereof,
and one peso and fifty centavos for each additional five
hundred pesos or fractional part thereof.
2. When the amount of the mortgage is more than six
thousand pesos but does not exceed thirty thousand
pesos, twenty-four pesos for the initial amount not
exceeding eight thousand pesos, and four pesos for
each additional two thousand pesos or fractional part
thereof.
3. When the amount of the mortgage is more than
thirty thousand pesos but does not exceed one hundred
thousand pesos, seventy-five pesos for the initial
amount not exceeding thirty-five thousand pesos, and
seven pesos for each additional five thousand pesos or
fractional part thereof.
4. When the amount of the mortgage is more than one
hundred thousand pesos but does not exceed five
hundred thousand pesos, one hundred and seventy-six
pesos for the initial amount not exceeding one hundred
ten thousand pesos, and ten pesos for each additional
ten thousand pesos or fractional part thereof.
5. When the amount of the mortgage is more than five
hundred thousand pesos, five hundred eighty-one pesos
for the initial amount not exceeding five hundred
twenty thousand pesos, and fifteen pesos for each
additional twenty thousand pesos or fractional part
thereof: Provided, however, That registration of the
mortgage in the province where the property is situated
shall be sufficient registration: And provided, further,
That if the mortgage is to be registered in more than
one city or province, the register of deeds of the city
or province where the instrument is first presented for
registration shall collect the full amount of the fees
due in accordance with the schedule prescribed above,
and the register of deeds of the other city or province
where the same instrument is also to be registered
shall collect only a sum equivalent to twenty per centum
of the amount of fees due and paid in the first city or
province, but in no case shall the fees payable in any
registry be less than the minimum fixed in said
schedule.
(c) For recording each instrument of sale, conveyance,
or transfer of the property which is subject of a
recorded mortgage, or of the assignment of mortgage
credit, the fees established in the preceding schedule
shall be collected on the basis of ten per centum of the
amount of the mortgage or unpaid balance thereof:
Provided, That the latter is stated in the instrument.
(d) For recording each notice of attachment, including
the necessary index and annotations, four pesos.
(e) For recording each release of mortgage, including
the necessary index and references, the fees
established in the schedule under paragraph (b) above
shall be collected on the basis of five per centum of the
amount of the mortgage.
(f) For recording each release of attachment, including
the proper annotations, two pesos.
(g) For recording each sheriffs return of sale,
including the index and references, three pesos.
(h) For recording a power of attorney, appointment of
judicial guardian, administrator, or trustee, or any
other instrument in which a person is given power to act
in behalf of another in connection with a mortgage,
three pesos.
(i) For recording each instrument or order relating to a
recorded mortgage, including the necessary index and
references, for which no specific fee is provided above,
two pesos.
(j) For certified copies of records, such fees as are
allowed by law for copies kept by the register of deeds.
(k) For issuing a certificate relative to, or showing the
existence or non-existence of, an entry in the
registration book, or a document on file, for each such
certificate containing not more than two hundred
words, three pesos; if it exceeds that number, an
additional fee of fifty centavos shall be collected for
every one hundred words or fractional part thereof, in
excess of the first two hundred words.
CHATTEL MORTGAGE
What is a chattel mortgage?
In a chattel mortgage, personal property is recorded in
the Chattel Mortgage Registry as security for the
performance of an obligation. (Art. 2140, Civil Code.
Note that the definition in Sec. 3, Act 1508 describing
chattel mortgage as a conditional sale is not accurate.)
What law governs chattel mortgages?
Primarily Act No. 1508, and the provisions of the Civil
Code on pledge insofar as they do not conflict with Act
No. 1508.
What is the purpose of the chattel mortgage law?
The purpose of the chattel mortgage law is to promote
business and trade and to give impetus to the economic
development of the country. (Torres v. Limjap, 56 Phil.
141; 1931)
What are the essential requisites of a chattel
mortgage?
1. Involves personal property (Note however the case of
Tumalad v. Vicencio, 41 SCRA 143; 1971);
2. Constituted to secure the fulfillment of the principal
obligation;
3. Mortgagor is absolute owner of the thing mortgaged;
4. Persons constituting the mortgage have the free
disposal of the property, or in the absence thereof, are
legally authorized for the purpose.
Note that recording of the chattel mortgage with the
Register of Deeds, while necessary to bind 3rd persons,
is not an essential requisite.
What formal requirements must be observed in the
preparation and execution of a chattel mortgage?
1. Substantial compliance with the form prescribed in
Sec. 5 of Act No. 1508;
2. The chattel mortgage must be signed in the presence
of at least 2 witnesses;
3. Affidavit of good faith;
The affidavit of good faith states that:
We (the parties) severally swear that the foregoing
mortgage is made for the purpose of securing the
obligation specified in the conditions thereof, and for
no other purpose, and that the same is a just and valid
obligation, and one not entered into for the purpose of
fraud. (Sec. 5)
4. Certificate of oath / Notarial acknowledgment;
5. Sufficiency of description
PROPERTY COVERED BY CHATTEL MORTGAGE
What kind of property can be the subject of a
chattel mortgage?
As a general rule, only personal property can be the
subject of a chattel mortgage. However, the following
kinds of property, although not personalty, have been
deemed validly covered by a chattel mortgage:
Growing crops (Sec. 6, Act 150);
House built on another persons land (Tumalad v.
Vicencio, 41 SCRA 143; 1971)
Machinery permanently affixed to a building, under
the doctrine of estoppel (Makati Leasing v. Wearever
Textile, 122 SCRA 296; 1983)
Can future or after-acquired property be the
subject of chattel mortgage?
Yes, provided that the after-acquired property is
either (1) in renewal of, or in substitution for, goods on
hand when the mortgage was executed, or (2)
purchased with the proceeds of the sale of such goods.
(Torres v. Limjap, 56 Phil. 141; 1931)
Can like or substituted property be deemed covered
by a chattel mortgage?
No. Sec. 7 of Act 1508 expressly provides that a
chattel mortgage covers only the property described
therein and not like or substituted property thereafter
acquired by the mortgagor and placed in the same
depository as the property originally mortgaged,
anything in the mortgage to the contrary
notwithstanding.
Note however that this provision does not apply to drug
stores, bazaars and all other stores in the nature of a
revolving and floating business, i.e. one that deals with
the sale of either perishable goods, rolling goods, or
goods subject to wear and tear. (Torres v. Limjap, 56
Phil. 141; 1931)
Can a chattel mortgage cover after-incurred
obligations or debts subsequently contracted?
No. A chattel mortgage can only cover obligations
existing at the time the mortgage is constituted. (Acme
Shoe, et al. V. CA, G.R. 103576, Aug. 22, 1996)
REGISTRATION
In what place should a chattel mortgage be
registered?
If residing in Philippines: place of residence of
mortgagor
If residing abroad: province where the property is
located
If residence and location of property are different: In
both place of residence of mortgagor and location of
property
Exception: If the amount of the mortgage is > P
500,000.00, the parties to the mortgage contract may
agree to have the mortgagee registered only in the
place where the property is located, and that shall be
sufficient. (Sec. 198, Revised Administrative Code)
In addition to the foregoing, in what other registry
or register should a chattel mortgage be registered
or recorded?
Motor vehicles: Land Transportation Office where
vehicle is registered
Shares of stock: Register of Deeds where the
corporation has its principal office. Note: There is no
need for notation in the books of the corporation. (Chua
Guan v. Samahang Magsasaka, 62 Phil. 472; 1935)
Vessels: Philippine Coastguard
Bureau of Customs in Manila (if in Manila) or in the
Office of the Collector of Customs in the port of entry
(if outside Manila)
Motor vehicle which is Land Transportation Franchising
and Regulatory public utility and loan Board (LTFRB) is
not repayable within 1 year:
When should a chattel mortgage be registered?
Act No. 1508 does not prescribe any period within
which a chattel mortgage must be registered.
JUNIOR MORTGAGEES
Can personal property already mortgaged be
mortgaged again? In such a case, what is the right
of the subsequent or junior mortgagees?
Yes. In such a case, junior mortgagees have the right of
redemption within the period of redemption allowed by
law, for as long as the mortgagor has not yet exercised
his right of redemption.
DEFAULT AND FORECLOSURE
Does the default of the mortgagor have the effect
of vesting ownership of the mortgaged property on
the mortgagee? In other words, could he appropriate
the property to himself?
No. He is only permitted to recover his credit from the
proceeds of the sale of the property at public auction
through a public officer in the manner prescribed in
Sec. 14 of Act No. 1508. Pactum commissorium is
prohibited.
What is the procedure for foreclosure of chattel
mortgages?
1. 30 days after the condition of the chattel mortgage
is broken, the mortgagee (or his executor,
administrator or assign) may cause the mortgaged
property (or any part thereof) to be sold at public
auction.
2. At least 10 days before the sale, the mortgagor and
all junior mortgagors must be informed in writing of the
time, place and purpose of the sale. The notice of sale
must likewise be posted in at least 2 public places in the
municipality where the mortgagor resides or where the
property is situated.
Who may bid in the foreclosure sale?
At the public auction, the mortgagor or owner may bid.
He shall, moreover, have a better right if he should
offer the same terms as the highest bidder. (This
implies the right to match.) The mortgagee may also
bid, but his offer shall not be valid if he is the only
bidder. (Art. 2113, Civil Code)
DEFICIENCY
Can a chattel mortgagee sue for a deficiency
following foreclosure?
As a general rule, yes, a chattel mortgagee can sue for
a deficiency judgment following foreclosure.
However, if the property was sold in installments, the
mortgagee can no longer take any action against the
purchaser to recover any unpaid balance of the price.
Any agreement to the contrary is void. (Art. 1484, Civil
Code)
What is the Recto law?
The Recto law, which is now reflected in Articles 1484-
1485 of the Civil Code, which provides that in a
contract of sale of personal property, the price of
which is payable in installments, the vendor may
exercise any of the following remedies:
a. Exact fulfillment of the obligation, should the vendee
fail to pay (specific performance);
b. Cancel the sale, should the vendees failure to pay
cover two or more installments (Note that this is not
the same as rescission because here, the vendor gets
back the object of the sale and retains the installments
paid. However, this is not available in the absence of
stipulation in the contract.);
c. Foreclose the chattel mortgage on the thing sold, if
one has been constituted, should the vendees failure to
pay cover 2 or more installments. In this case, he shall
have no further action against the purchaser to recover
any unpaid balance of the price. Any agreement to the
contract is void.
(The principal object of this amendment was to remedy
the abuses committed in connection with the
foreclosure of chattel mortgages. This amendment
prevents mortgagees from seizing the mortgaged
property, buying it at foreclosure sale for a low price,
and then bringing the suit against the mortgagor for a
deficiency judgment. The almost invariable result of
this procedure was that the mortgagor found himself
minus the property and still owing practically the full
amount of his original indebtedness.)
These remedies are alternative; not cumulative. (Pacific
Commercial Co. v. Dela Rama, 72 Phil. 380)
SPECIFIC PERFORMANCE
In sales on installments, where the action instituted is
for specific performance and the mortgaged property is
subsequently attached and sold, the sale thereof does
not amount to a foreclosure of the mortgage. Hence,
seller is entitled to a deficiency judgment. (Southern
Motors v. Moscoso, 2 SCRA 168; 1961)
REDEMPTION
What are the rules on redemption of property
subject to chattel mortgage?
Since the Chattel Mortgage Law does not contain
provisions similar to Sec. 6 & 7 of Act No. 3135
governing extra-judicial foreclosure of real estate
mortgage, the provisions of Rule 39 of the Rules of
Court on redemption in case of execution sales will
apply. (IFC Service Leasing v. Nera, 19 SCRA 181)
(Please include short digests/ ratios of the following
cases:
Levy Hermanos, Inc. v. Pacific Commercial, 71 Phil. 587
Cruz v. Filipinas Investment, 23 SCRA 791
Ridad v. Filipinas Investment, 205 Phil. 197
Filipinas Investment v. Vitug, 28 SCRA 65
EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE
GOVERNING LAW
Act 3135, as amended by Act No. 4118 and Sec. 47, R.A.
8791 (General Banking Law of 2000) governs sales made
under a special power inserted in or attached to any
real estate mortgage made as security for the payment
of money or the fulfillment of any other obligation.
(Also, there is a SC circular that outlines the procedure
for foreclosure of Real Estate Mortgages.
Unfortunately, hindi ko alam yung number. Please find it
nalang.)
FORECLOSURE SALE
Type of Sale: Public auction
Venue of Sale: Province where the property is situated
If venue is subject to stipulation, such sale shall be
made in said place (i.e., the place so stipulated) or in the
municipal building of the municipality in which the
property or part thereof is situated.
Notice: Notices of the sale are to be posted in at least
3 public places of the municipality or city where the
property is situated for not less than 20 days. Such
notice shall likewise be published once a week for at
least 3 consecutive weeks in a newspaper of general
circulation in the municipality or city.
Time of Sale: Between 9 AM and 4 PM
Who May Bid: The creditor;The trustee; Other
persons authorized to act for the creditor; Other
bidders not privy to the mortgage or trust deed
PROCEDURE:
1. The mortgagee files an application for foreclosure
with the Executive Judge through the Clerk of Court,
who will receive and docket the application and collect
the appropriate filing fees. (SC Circular)
2. Notice of the sale is posted in at least 3 public places
of the municipality or city where the property is
situated for not less than 20 days and published once a
week for at least 3 consecutive weeks in a newspaper of
general circulation in the municipality or city. (Sec. 3,
Act 3135)
3. The auction sale is conducted under the direction of
the sheriff, the Executive Judge, or a notary public of
the municipality. (Sec. 4, Act 3135)
At the sale, the creditor, trustee, or other persons
authorized to act for the creditor may participate in
the bidding and purchase under the same conditions as
any other bidder unless the contrary has been
expressly provided in the mortgage or trust deed under
which the sale is made. (Sec. 5, Act 3135)
There must be at least 2 participating bidders for the
auction sale to be valid. (SC Circular)
4. Once the sale has been confirmed, the Clerk of Court
issues a certificate of sale to the winning bidder.
(Confirm this!)
5. After the date of the confirmation of the auction
sale, the winning bidder has the right to enter upon and
take possession of such property and administer the
same in accordance with law. (Sec. 47, R.A. 8791)
Within 30 days after the purchaser is given possession
of the property, the debtor may petition that the sale
be set aside on the ground that the mortgage was not
violated or the sale was not made in accordance with
the provisions of Act 3135. (Sec. 8, Act 3135)
6. Upon failure of the debtor to redeem the property
within the period allowed him by the law, absolute
ownership over the purchased property vests in the
winning bidder.
POSSESSION
The purchaser at the auction sale has the right to enter
upon and take possession of the property immediately
after the date of the confirmation of the auction sale
and administer the same in accordance with law. (Sec.
47, R.A. 8791, amending Sec. 7 of Act 3135)
REDEMPTION
Who May Redeem?
(1) The debtor;
(2) The debtors successors-in-interest;
(3) Any judicial creditor or judgment creditor of the
debtor;
(4) Any person having a lien on the property subsequent
to the mortgage or deed of trust under which the
property is sold
PERIOD FOR REDEMPTION:
Natural persons: Within 1 year from and after the date
of the sale (Sec. 6, Act 3135)
Juridical persons: Until but not after the registration
of the certificate of foreclosure sale with the
applicable Register of Deeds, which in no case shall be
more than 3 months after foreclosure, whichever is
earlier. (Sec. 47, R.A. 8791)
EFFECT OF INADEQUACY OF PRICE
When there is a right to redeem, inadequacy of price is
of no moment for the reason that the judgment debtor
always has the chance to redeem and reacquire the
property. In fact, the property may be sold for less
than its fair market value precisely because the lesser
the price the easier for the owner to effect a
redemption. (Valmonte v. CA, 303 SCRA 278, citing DBP
v. Moll, 43 SCRA 82)
EFFECT OF REQUEST FOR EXTENSION OF TIME ON RIGHT
TO QUESTION VALIDITY OF FORECLOSURE SALE
The act of seeking an extension of the redemption
period estops the mortgagors from questioning the
foreclosure sale thereafter. (Valmonte v. CA, 303 SCRA
27
8. Deed of Release of Real Estate or Chattel
Mortgage
Deed Of Release
A legal document that removes a previous claim or lien
on an asset. A deed of release is usually issued once a
mortgage or other type of debt, previously secured
against the asset, has been paid in full. After the deed
of release is written, the asset is owned free and clear
by the owner, and any previous claims against the asset
that the lender may have had are dissolved.
For example, when most individuals purchase a home,
they do so with the help of a mortgage offered by a
financial institution. When a home buyer obtains a
mortgage to finance the purchase of real estate, the
bank providing the funds for the mortgage doesnt
just lend them the money in good faith the bank
takes a legal claim against the house as collateral.
Once the home owner pays off all the money the
bank lent them for the mortgage, the bank would
write a deed of release, ending their claim against
the house.
9. Pre-Nuptial Agreement Articles 74 to 81 of the
Family Code
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
Chapter 1. General Provisions
Art. 74. The property relationship between husband
and wife shall be governed in the following order:
(1) By marriage settlements executed before the
marriage; (2) By the provisions of this Code; and (3) By
the local custom. (118)
Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute
community, conjugal partnership of gains, complete
separation of property, or any other regime. In the
absence of a marriage settlement, or when the regime
agreed upon is void, the system of absolute community
of property as established in this Code shall govern.
Art. 76. In order that any modification in the marriage
settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions
of Articles 66, 67, 128, 135 and 136. (121)
Art. 77. The marriage settlements and any
modification thereof shall be in writing, signed by the
parties and executed before the celebration of the
marriage. They shall not prejudice third persons unless
they are registered in the local civil registry where the
marriage contract is recorded as well as in the proper
registries of properties. (122a)
Art. 78. A minor who according to law may contract
marriage may also execute his or her marriage
settlements, but they shall be valid only if the persons
designated in Article 14 to give consent to the marriage
are made parties to the agreement, subject to the
provisions of Title IX of this Code. (120a)
Art. 79. For the validity of any marriage settlement
executed by a person upon whom a sentence of civil
interdiction has been pronounced or who is subject to
any other disability, it shall be indispensable for the
guardian appointed by a competent court to be made a
party thereto. (123a)
Art. 80. In the absence of a contrary stipulation in a
marriage settlement, the property relations of the
spouses shall be governed by Philippine laws, regardless
of the place of the celebration of the marriage and
their residence.
This rule shall not apply:
(1) Where both spouses are aliens; (2) With respect to
the extrinsic validity of contracts affecting property
not situated in the Philippines and executed in the
country where the property is located; and (3) With
respect to the extrinsic validity of contracts entered
into in the Philippines but affecting property situated in
a foreign country whose laws require different
formalities for its extrinsic validity. (124a)
Art. 81. Everything stipulated in the settlements or
contracts referred to in the preceding articles in
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be
rendered void if the marriage does not take place.
However, stipulations that do not depend upon the
celebration of the marriages shall be valid. (125a)
10. Deed of Assignment of Credits Article 1624 to
1635 of the Civil Code
CHAPTER 8: ASSIGNMENT OF CREDITS AND OTHER
INCORPOREAL RIGHTS
Art. 1624. An assignment of creditors and other
incorporeal rights shall be perfected in accordance with
the provisions of Article 1475. (n)
Art. 1625. An assignment of a credit, right or action
shall produce no effect as against third person, unless
it appears in a public instrument, or the instrument is
recorded in the Registry of Property in case the
assignment involves real property. (1526)
Art. 1626. The debtor who, before having knowledge
of the assignment, pays his creditor shall be released
from the obligation. (1527)
Art. 1627. The assignment of a credit includes all the
accessory rights, such as a guaranty, mortgage, pledge
or preference. (1528)
Art. 1628. The vendor in good faith shall be
responsible for the existence and legality of the credit
at the time of the sale, unless it should have been sold
as doubtful; but not for the solvency of the debtor,
unless it has been so expressly stipulated or unless the
insolvency was prior to the sale and of common
knowledge.
Even in these cases he shall only be liable for the price
received and for the expenses specified in No. 1 of
Article 1616.
The vendor in bad faith shall always be answerable for
the payment of all expenses, and for damages. (1529)
Art. 1629. In case the assignor in good faith should
have made himself responsible for the solvency of the
debtor, and the contracting parties should not have
agreed upon the duration of the liability, it shall last
for one year only, from the time of the assignment if
the period had already expired.
If the credit should be payable within a term or period
which has not yet expired, the liability shall cease one
year after the maturity. (1530a)
Art. 1630. One who sells an inheritance without
enumerating the things of which it is composed, shall
only be answerable for his character as an heir. (1531)
Art. 1631. One who sells for a lump sum the whole of
certain rights, rents, or products, shall comply by
answering for the legitimacy of the whole in general;
but he shall not be obliged to warrant each of the
various parts of which it may be composed, except in
the case of eviction from the whole or the part of
greater value. (1532a)
Art. 1632. Should the vendor have profited by some
of the fruits or received anything from the inheritance
sold, he shall pay the vendee thereof, if the contrary
has not been stipulated. (1533)
Art. 1633. The vendee shall, on his part, reimburse the
vendor for all that the latter may have paid for the
debts of and charges on the estate and satisfy the
credits he may have against the same, unless there is an
agreement to the contrary. (1534)
Art. 1634. When a credit or other incorporeal right in
litigation is sold, the debtor shall have a right to
extinguish it by reimbursing the assignee for the price
the latter paid therefor, the judicial costs incurred by
him, and the interest on the price from the day on
which the same was paid.
A credit or other incorporeal right shall be considered
in litigation from the time the complaint concerning the
same is answered.
The debtor may exercise his right within thirty days
from the date the assignee demands payment from him.
Art. 1635. From the provisions of the preceding
article shall be excepted the assignments or sales
made:
(1) To a co-heir or co-owner of the right assigned;
(2) To a creditor in payment of his credit;
(3) To the possessor of a tenement or piece of land
which is subject to the right in litigation assigned.
PARTNERSHIP AND CORPORATE FORMS
1. Articles of Partnership Articles 1767, 1770 to
1774 of the Civil Code
Article 1767. By the contract of partnership two or
more persons bind themselves to contribute money,
property, or industry to a common fund, with the
intention of dividing the profits among themselves.
Two or more persons may also form a partnership for
the exercise of a profession. (1665a)
Article 1770. A partnership must have a lawful object
or purpose, and must be established for the common
benefit or interest of the partners.
When an unlawful partnership is dissolved by a judicial
decree, the profits shall be confiscated in favor of the
State, without prejudice to the provisions of the Penal
Code governing the confiscation of the instruments and
effects of a crime. (1666a)
Article 1771. A partnership may be constituted in any
form, except where immovable property or real rights
are contributed thereto, in which case a public
instrument shall be necessary. (1667a)
2. Articles of Incorporation Sec. 10 to 15 of the
Corporation Code (BP Blg. 68)
TITLE II: INCORPORATION AND ORGANIZATIONOF PRIVATE
CORPORATIONS
Sec. 10. Number and qualifications of incorporators.
Any number of natural persons not less than five (5)
but not more than fifteen (15), all of legal age and a
majority of whom are residents of the Philippines, may
form a private corporation for any lawful purpose or
purposes. Each of the incorporators of s stock
corporation must own or be a subscriber to at least one
(1) share of the capital stock of the corporation.
Sec. 11. Corporate term. A corporation shall exist
for a period not exceeding fifty (50) years from the
date of incorporation unless sooner dissolved or unless
said period is extended. The corporate term as
originally stated in the articles of incorporation may be
extended for periods not exceeding fifty (50) years in
any single instance by an amendment of the articles of
incorporation, in accordance with this Code; Provided,
That no extension can be made earlier than five (5)
years prior to the original or subsequent expiry date(s)
unless there are justifiable reasons for an earlier
extension as may be determined by the Securities and
Exchange Commission.
Sec. 12. Minimum capital stock required of stock
corporations. Stock corporations incorporated under
this Code shall not be required to have any minimum
authorized capital stock except as otherwise
specifically provided for by special law, and subject to
the provisions of the following section.
Sec. 13. Amount of capital stock to be subscribed
and paid for the purposes of incorporation. At least
twenty-five percent (25%) of the authorized capital
stock as stated in the articles of incorporation must be
subscribed at the time of incorporation, and at least
twenty-five (25%) per cent of the total subscription
must be paid upon subscription, the balance to be
payable on a date or dates fixed in the contract of
subscription without need of call, or in the absence of a
fixed date or dates, upon call for payment by the board
of directors: Provided, however, That in no case shall
the paid-up capital be less than five Thousand
(P5,000.00) pesos.
Sec. 14. Contents of the articles of incorporation.
All corporations organized under this code shall file
with the Securities and Exchange Commission articles
of incorporation in any of the official languages duly
signed and acknowledged by all of the incorporators,
containing substantially the following matters, except
as otherwise prescribed by this Code or by special
law:
1. The name of the corporation;
2. The specific purpose or purposes for which the
corporation is being incorporated. Where a corporation
has more than one stated purpose, the articles of
incorporation shall state which is the primary purpose
and which is/are he secondary purpose or purposes:
Provided, That a non-stock corporation may not include
a purpose which would change or contradict its nature
as such;
3. The place where the principal office of the
corporation is to be located, which must be within the
Philippines;
4. The term for which the corporation is to exist;
5. The names, nationalities and residences of the
incorporators;
6. The number of directors or trustees, which shall not
be less than five (5) nor more than fifteen (15);
7. The names, nationalities and residences of persons
who shall act as directors or trustees until the first
regular directors or trustees are duly elected and
qualified in accordance with this Code;
8. If it be a stock corporation, the amount of its
authorized capital stock in lawful money of the
Philippines, the number of shares into which it is
divided, and in case the share are par value shares, the
par value of each, the names, nationalities and
residences of the original subscribers, and the amount
subscribed and paid by each on his subscription, and if
some or all of the shares are without par value, such
fact must be stated;
9. If it be a non-stock corporation, the amount of its
capital, the names, nationalities and residences of the
contributors and the amount contributed by each; and
10. Such other matters as are not inconsistent with law
and which the incorporators may deem necessary and
convenient.
The Securities and Exchange Commission shall not
accept the articles of incorporation of any stock
corporation unless accompanied by a sworn statement
of the Treasurer elected by the subscribers showing
that at least twenty-five (25%) percent of the
authorized capital stock of the corporation has been
subscribed, and at least twenty-five (25%) of the total
subscription has been fully paid to him in actual cash
and/or in property the fair valuation of which is equal
to at least twenty-five (25%) percent of the said
subscription, such paid-up capital being not less than
five thousand (P5,000.00) pesos.
Sec. 15. Forms of Articles of Incorporation. Unless
otherwise prescribed by special law, articles of
incorporation of all domestic corporations shall comply
substantially with the following form:
ARTICLES OF INCORPORATION OF ABC CORP.
KNOW ALL MEN BY THESE PRESENTS:
The undersigned incorporators, all of legal age and a
majority of whom are residents of the Philippines, have
this day voluntarily agreed to form a (stock) (non-stock)
corporation under the laws of the Republic of the
Philippines;
AND WE HEREBY CERTIFY:
FIRST: That the name of said corporation shall be
., INC. or CORPORATION; case the corporation is non-stock, Nos. 7, 8 and 9 of
SECOND: That the purpose or purposes for which such
corporation is incorporated are: (If there is more than
one purpose, indicate primary and secondary
purposes);
THIRD: That the principal office of the corporation is
located in the City/Municipality of.., Province by each.)
of., Philippines; TENTH: That.. has been elected by the
FOURTH: That the term for which said corporation is to
exist is years from and after the date of such until his successor is duly elected and qualified in
issuance of the certificate of incorporation;
FIFTH: That the names, nationalities and residences of
the incorporators of the corporation are as follows:
NAME NATIONALITY RESIDENCE
.
.
SIXTH: That the number of directors or trustees of
the corporation shall be; and the names,
nationalities and residences of the first directors or
trustees of the corporation are as follows:
NAME NATIONALITY RESIDENCE
.
.
.
SEVENTH: That the authorized capital stock of the
corporation is (P.) PESOS in lawful money of
the Philippines, divided into.. shares with the par
value of. (P..) Pesos per share.
(In case all the share are without par value):
That the capital stock of the corporation is.. shares
without par value. (In case some shares have par value
and some are without par value): That the capital stock
of said corporation consists of.. shares of which.
shares are of the par value of.. (P) PESOS each,
and of which. shares are without par value.
EIGHTH: That at least twenty five (25%) per cent of
the authorized capital stock above stated has been
subscribed as follows:
Name of Subscriber Nationality No of Shares
Amount
Subscribed Subscribed
..
..
NINTH: That the above-named subscribers have paid at
least twenty-five (25%) percent of the total
subscription as follows:
Name of Subscriber Amount Subscribed Total Paid-
In
(Modify Nos. 8 and 9 if shares are with no par value. In
the above articles may be modified accordingly, and it is
sufficient if the articles state the amount of capital or
money contributed or donated by specified persons,
stating the names, nationalities and residences of the
contributors or donors and the respective amount given
subscribers as Treasurer of the Corporation to act as
accordance with the by-laws, and that as such
Treasurer, he has been authorized to receive for and in
the name and for the benefit of the corporation, all
subscription (or fees) or contributions or donations paid
or given by the subscribers or members.
ELEVENTH: (Corporations which will engage in any
business or activity reserved for Filipino citizens shall
provide the following):
No transfer of stock or interest which shall reduce
the ownership of Filipino citizens to less than the
required percentage of the capital stock as provided by
existing laws shall be allowed or permitted to recorded
in the proper books of the corporation and this
restriction shall be indicated in all stock certificates
issued by the corporation.
IN WITNESS WHEREOF, we have hereunto signed these articles of incorporation. Such articles, as amended
Articles of Incorporation, this day of .., 19. shall be indicated by underscoring the change or
in the City/Municipality of, Province of, changes made, and a copy thereof duly certified under
Republic of the Philippines. oath by the corporate secretary and a majority of the
. directors or trustees stating the fact that said
. amendment or amendments have been duly approved by
(Names and signatures of the incorporators) the required vote of the stockholders or members, shall
SIGNED IN THE PRESENCE OF: be submitted to the Securities and Exchange
. Commission.
(Notarial Acknowledgment) The amendments shall take effect upon their approval
by the Securities and Exchange Commission or from the
TREASURERS AFFIDAVIT
date of filing with the said Commission if not acted
REPUBLIC OF THE PHILIPPINES )
CITY/MUNICIPALITY OF ) S.S. upon within six (6) months from the date of filing for a
PROVINCE OF ) cause not attributable to the corporation.
I, .., being duly sworn, depose and say: Sec. 17. Grounds when articles of incorporation or
That I have been elected by the subscribers of the amendment may be rejected or disapproved. The
corporation as Treasurer thereof, to act as such until Securities and Exchange Commission may reject the
my successor has been duly elected and qualified in articles of incorporation or disapprove any amendment
accordance with the by-laws of the corporation, and thereto if the same is not in compliance with the
that as such Treasurer, I hereby certify under oath requirements of this Code: Provided, That the
that at least 25% of the authorized capital stock of the Commission shall give the incorporators a reasonable
corporation has been subscribed and at least 25% of time within which to correct or modify the
the total subscription has been paid, and received by objectionable portions of the articles or amendment.
me, in cash or property, in the amount of not less than The following are grounds for such rejection or
P5,000.00, in accordance with the Corporation Code. disapproval:
1. That the articles of incorporation or any amendment
(Signature of Treasurer) thereto is not substantially in accordance with the form
SUBSCRIBED AND SWORN to before me, a Notary prescribed herein;
Public, for and in the City/Municipality of Province 2. That the purpose or purposes of the corporation are
of.., this day of, 19.; by . with Res. Cert. patently unconstitutional, illegal, immoral, or contrary to
No issued at. on, 19 government rules and regulations;
NOTARY PUBLIC 3. That the Treasurers Affidavit concerning the
My commission expires on.., 19. amount of capital stock subscribed and/or paid if
Doc. No; false;
Page No; 4. That the percentage of ownership of the capital
Book No..; stock to be owned by citizens of the Philippines has not
Series of 19.. (7a) been complied with as required by existing laws or the
Sec. 16. Amendment of Articles of Incorporation. Constitution.
Unless otherwise prescribed by this Code or by special No articles of incorporation or amendment to articles
law, and for legitimate purposes, any provision or of incorporation of banks, banking and quasi-banking
matter stated in the articles of incorporation may be institutions, building and loan associations, trust
amended by a majority vote of the board of directors companies and other financial intermediaries, insurance
or trustees and the vote or written assent of the companies, public utilities, educational institutions, and
stockholders representing at least two-thirds (2/3) of other corporations governed by special laws shall be
the outstanding capital stock, without prejudice to the accepted or approved by the Commission unless
appraisal right of dissenting stockholders in accordance accompanied by a favorable recommendation of the
with the provisions of this Code, or the vote or written appropriate government agency to the effect that such
assent of at least two-thirds (2/3) of the members if it articles or amendment is in accordance with law.
be a non-stock corporation. Sec. 18. Corporate name. No corporate name may be
The original and amended articles together shall contain allowed by the Securities and Exchange Commission if
all provisions required by law to be set out in the the proposed name is identical or deceptively or
confusingly similar to that of any existing corporation
or to any other name already protected by law or is
patently deceptive, confusing or contrary to existing
laws. When a change in the corporate name is approved,
the Commission shall issue an amended certificate of
incorporation under the amended name.
Sec. 19. Commencement of corporate existence. A
private corporation formed or organized under this
Code commences to have corporate existence and
juridical personality and is deemed incorporated from
the date the Securities and Exchange Commission
issues a certificate of incorporation under its official
seal; and thereupon the incorporators,
stockholders/members and their successors shall
constitute a body politic and corporate under the name
stated in the articles of incorporation for the period of
time mentioned therein, unless said period is extended
or the corporation is sooner dissolved in accordance
with law.
Sec. 20. De facto corporations. The due
incorporation of any corporation claiming in good faith
to be a corporation under this Code, and its right to
exercise corporate powers, shall not be inquired into
collaterally in any private suit to which such corporation
may be a party. Such inquiry may be made by the
Solicitor General in a quo warranto proceeding.
Sec. 21. Corporation by estoppel. All persons who
assume to act as a corporation knowing it to be without
authority to do so shall be liable as general partners for
all debts, liabilities and damages incurred or arising as a
result thereof: Provided, however, That when any such
ostensible corporation is sued on any transaction
entered by it as a corporation or on any tort committed
by it as such, it shall not be allowed to use as a defense
its lack of corporate personality.
On who assumes an obligation to an ostensible
corporation as such, cannot resist performance thereof
on the ground that there was in fact no corporation.
Sec. 22. Effects on non-use of corporate charter
and continuous inoperation of a corporation. If a
corporation does not formally organize and commence
the transaction of its business or the construction of
its works within two (2) years from the date of its
incorporation, its corporate powers cease and the
corporation shall be deemed dissolved. However, if a
corporation has commenced the transaction of its
business but subsequently becomes continuously
inoperative for a period of at least five (5) years, the
same shall be a ground for the suspension or revocation
of its corporate franchise or certificate of
incorporation.
This provision shall not apply if the failure to organize,
commence the transaction of its businesses or the
construction of its works, or to continuously operate is
due to causes beyond the control of the corporation as
may be determined by the Securities and Exchange
Commission.
3. By-Laws Sec. 46 to 47 of the Corporation Code
TITLE V: BY LAWS
Sec. 46. Adoption of by-laws. Every corporation
formed under this Code must, within one (1) month
after receipt of official notice of the issuance of its
certificate of incorporation by the Securities and
Exchange Commission, adopt a code of by-laws for its
government not inconsistent with this Code. For the
adoption of by-laws by the corporation the affirmative
vote of the stockholders representing at least a
majority of the outstanding capital stock, or of at least
a majority of the members in case of non-stock
corporations, shall be necessary. The by-laws shall be
signed by the stockholders or members voting for them
and shall be kept in the principal office of the
corporation, subject to the inspection of the
stockholders or members during office hours. A copy
thereof, duly certified to by a majority of the
directors or trustees countersigned by the secretary
of the corporation, shall be filed with the Securities
and Exchange Commission which shall be attached to
the original articles of incorporation.
Notwithstanding the provisions of the preceding
paragraph, by-laws may be adopted and filed prior to
incorporation; in such case, such by-laws shall be
approved and signed by all the incorporators and
submitted to the Securities and Exchange Commission,
together with the articles of incorporation.
In all cases, by-laws shall be effective only upon the
issuance by the Securities and Exchange Commission of
a certification that the by-laws are not inconsistent
with this Code.
The Securities and Exchange Commission shall not
accept for filing the by-laws or any amendment thereto
of any bank, banking institution, building and loan
association, trust company, insurance company, public
utility, educational institution or other special
corporations governed by special laws, unless
accompanied by a certificate of the appropriate
government agency to the effect that such by-laws or
amendments are in accordance with law. (20a)
Sec. 47. Contents of by-laws. Subject to the
provisions of the Constitution, this Code, other special
laws, and the articles of incorporation, a private
corporation may provide in its by-laws for:
 1. The time, place and manner of calling and
conducting regular or special meetings of the directors
or trustees;
2. The time and manner of calling and conducting
regular or special meetings of the stockholders or
members;
3. The required quorum in meetings of stockholders or
members and the manner of voting therein;
4. The form for proxies of stockholders and members
and the manner of voting them;
5. The qualifications, duties and compensation of
directors or trustees, officers and employees;
6. The time for holding the annual election of directors
of trustees and the mode or manner of giving notice
thereof;
7. The manner of election or appointment and the term
of office of all officers other than directors or
trustees;
8. The penalties for violation of the by-laws;
9. In the case of stock corporations, the manner of
issuing stock certificates; and
10. Such other matters as may be necessary for the
proper or convenient transaction of its corporate
business and affairs. (21a)
4. Board Resolution authorizing corporate officer to
obtain a bank loan
BOARD RESOLUTION AUTHORIZING CORPORATE OFFICER
REPUBLIC OF THE PHILIPPINES }
MAKATI CITY } S.S.
SECRETARYS CERTIFICATE
I, Mary Joy Baybay, Filipino, of legal age, with office
address at 1434 Ayala Avenue, Makati City, after being
sworn in accordance with law, do hereby depose and
state as follows:
1. That I am the incumbent Corporate Secretary of
Disk Drives Unlimited, a corporation duly organized and
existing under Philippine laws, with principal office at
1434 Ayala Avenue, Makati City,;
2. That during the special meeting of the Board of
Directors held on 5 January2007, wherein a quorum was
present and acted throughout, after being informed of
the necessity of obtaining loans and/or credit
accommodation with any banking/ lending institution, to
generate funds for the purpose of expanding the
business of exporting hard disk drives, the Board
approved the following resolution, to wit:
RESOLUTION NO. BD-028-2007
RESOLVED, as it is hereby resolved, that the
corporation be empowered and authorized to apply for,
negotiate, obtain loans from HOWARDBANKING INC.,
including the renewal, extension and/or increase,
rollover or restructuring thereof, and/or of its existing
credit facilities in such amount(s) and under such terms
and conditions as may be mutually agreed upon, and to
secure and guarantee the payment of the aforesaid loan
or credit facilities by means of mortgage, pledge,
assignment or any other form of encumbrance upon any
and all properties or assets of the corporation of
whatever kind or nature, real or personal, as may be
sufficient or required for the purpose.
RESOLVED FURTHER, as it is hereby resolved, that
ISIDRO BARRIOS, the President, be authorized to
sign, execute, and deliver any and all documents
including but not limited to loan application, disclosure
statement, purpose sheet, application for letters of
credit, promissory note, draft, surety agreement, trust
receipt, mortgages, pledge, assignment, and the like,
including the renewals/ extensions/ increase/
amendments/ restructuring thereof, in order to
effectuate the foregoing matters.
NAME POSITION SIGNATURE
Isidro Barrios President
RESOLVED FINALLY that HOWARD BANKING INC. be
furnished a copyof the foregoing resolutions for its
guidance and may continue to rely onthe authority
conferred thereon, including the renewal, increase, roll-
overand/or restructuring thereof, unless and except to
the extent that theforegoing resolutions shall be
revoked or modified by the receipt of anysubsequent
resolution/s of the Board of Directors of the
Corporation.
3. That the foregoing Resolution remains valid and has
not in any manner beennovated, revoked, nor repealed
to date.
AFFIANT FURTHER SAYETH NAUGHT.
Issued this 20th day of March 2007 at Makati City.
5. Corporate Secretarys Certificate
REPUBLIC OF THE PHILIPPINES ) _ ) SS.
I, _, Filipino, of legal age, single/married to
_/widow/widower, and a resident of _, after having
been duly sworn in accordance with law, hereby depose
and say:
1. That I am the Corporate Secretary of _ with office
address at _;
2. That at a duly convened meeting of the Board of
Directors held last _, where a quorum was present, the
following resolutions were unanimously approved, to wit:
RESOLVED, that the President, Mr./Mrs./Dr./Atty. _,
be authorized, as he is hereby duly authorized, to
negotiate for a loan from _ in the amount of _ to be
secured by the corporations _ property and authorizing
him further to sign for and in behalf of the corporation
any and all papers and documents relative thereto.
3. That the foregoing resolutions are true and correct
and that it has not been amended or superseded up to
this date.
IN WITNESS WHEREOF, I have hereunto affixed my
signature this day of 20_ at , Philippines.
_________________________________
(Signature of Affiant over Printed Name)
6. Proxy to attend a stockholders meeting Sec. 58
of the Corporation Code
Sec. 58. Proxies. Stockholders and members may
vote in person or by proxy in all meetings of
stockholders or members. Proxies shall in writing,
signed by the stockholder or member and filed before
the scheduled meeting with the corporate secretary.
Unless otherwise provided in the proxy, it shall be valid
only for the meeting for which it is intended. No proxy
shall be valid and effective for a period longer than five
(5) years at any one time. (n)
7. Notice of Stockholders meeting Sec. 50 to 51
of the Corporation Code
TITLE VI: MEETINGS
Sec. 49. Kinds of meetings. Meetings of directors,
trustees, stockholders, or members may be regular or
special. (n)
Sec. 50. Regular and special meetings of
stockholders ormembers. Regular meetings of
stockholders or members shall be held annually on a
date fixed in the by-laws, or if not so fixed, on any date
in April of every year as determined by the board of
directors or trustees: Provided, That written notice of
regular meetings shall be sent to all stockholders or
members of record at least two (2) weeks prior to the
meeting, unless a different period is required by the
by-laws.
Special meetings of stockholders or members shall be
held at any time deemed necessary or as provided in the
by-laws: Provided, however, That at least one (1) week
written notice shall be sent to all stockholders or
members, unless otherwise provided in the by-laws.
Notice of any meeting may be waived, expressly or
impliedly, by any stockholder or member.
Whenever, for any cause, there is no person authorized
to call a meeting, the Secretaries and Exchange
Commission, upon petition of a stockholder or member
on a showing of good cause therefor, may issue an order
to the petitioning stockholder or member directing him
to call a meeting of the corporation by giving proper
notice required by this Code or by the by-laws. The
petitioning stockholder or member shall preside thereat
until at least a majority of the stockholders or
members present have been chosen one of their number
as presiding officer. (24, 26)
Sec. 51. Place and time of meetings of stockholders
ormembers. Stockholders or members meetings,
whether regular or special, shall be held in the city or
municipality where the principal office of the
corporation is located, and if practicable in the principal
office of the corporation: Provided, That Metro Manila
shall, for purposes of this section, be considered a city
or municipality.
Notice of meetings shall be in writing, and the time and
place thereof stated therein.
All proceedings had and any business transacted at any
meeting of the stockholders or members, if within the
powers or authority of the corporation, shall be valid
even if the meeting be improperly held or called,
provided all the stockholders or members of the
corporation are present or duly represented at the
meeting. (24 and 25)
8. Minutes of a Corporate Meeting (sample)
[Insert Name of Company]
MINUTES OF A MEETING OF THE BOARD OF DIRECTORS
[Insert Date of Board Meeting]
A meeting of the Board of Directors (the Board) of
[Insert name of company], a [Insert state of
incorporation] corporation (the Company), was held on
[Insert date of board meeting] ([Insert time zonei.e.
Mountain Daylight Time]) at the offices of the
Company.
Directors Present:
[Insert names of directors present]
Also Present Were:
[Insert names of other people (mgmt., etc.) present]
Directors Absent:
[Insert names of directors absent]
Counsel Present:
[Insert names of legal counsel present]
NOTE: Its generally good to note next to the above
listing if the attendee(s) participated via telephone
(otherwise its assumed they participated in person at
the above referenced location]
Call to Order
[Insert name of CEO or board chair] called the meeting
to order at [Insert start time of meeting] ([Insert time
zonei.e. Mountain Daylight Time]) and [Insert name of
secretary] recorded the minutes. A quorum of directors
was present, and the meeting, having been duly
convened, was ready to proceed with business.
CEO Report
[Insert name of CEO] reviewed the agenda and
welcomed everyone to the meeting. Next, [Insert name
of CEO] discussed the current status of the company
and its progress. A number of questions were asked and
extensive discussion ensued.
Sales & Business Development Update
[Insert name] next provided an update on the overall
sales progress and sales pipeline of the Company. He
also presented the status of business development
discussions.
* [Insert name] joined the meeting*
Financial Review
[Insert name] provided a comprehensive update on the
Companys financial plan and forecast. [Insert name]
also reviewed the Companys principal financial operating
metrics. Discussion ensued.
Financial Planning
The Board next discussed the timing and creation of
the 2007 Operating Plan.
Approval of Option Grants
[Insert name] presented to the Board a list of proposed
options to be granted to Company employees [and
advisors], for approval, whereupon motion duly made,
seconded and unanimously adopted, the option grants
were approved as presented in Exhibit A.
Approval of Minutes
[Insert name] presented to the Board the minutes of
the [insert date of previous board meeting] meeting of
the Board for approval, whereupon motion duly made,
seconded and unanimously adopted, the minutes were
approved as presented.
*Management was excused from the meeting *
Closed Session
The Board next discussed a number of strategic topics.
Questions were asked and answered.
Adjournment
There being no further business to come before the
meeting, the meeting was adjourned at [Insert time of
adjournment] ([Insert time zonei.e. Mountain Daylight
Time]).
Respectfully submitted,
____________________________
[Insert name of secretary], Recording Secretary
NOTE: Create (and delete) additional headings and
sections above as necessary to capture the major
agenda items of the board meeting.
NOTE: If attendees join after the meeting start time
or leave before the meeting adjournment, its
preferable to note when they join and leave the
meeting as indicated above by the asterisked notations.
9. Arbitration Clause RA 9286 (The Alternative
Dispute Resolution Act of 2004