Legal Forms Reviewer - law PDF

Preview

Summary

LEGAL FORMSForm is important when the law requires a document or other special form, such as those mentioned in Article 1358 of the New Civil Code, donation of an immovable property under Art. 749, NCC, pledge under Art. 2096, NCC. (Suarez, 2007)Q: What does the study of Legal Forms include? A: It i...

Description

LEGAL FORMS Form is important when the law requires a document or other special form, such as those mentioned in Article 1358 of the New Civil Code, donation of an immovable property under Art. 749, NCC, pledge under Art. 2096, NCC. (Suarez, 2007) Q: What does the study of Legal Forms include? A: It includes the following: 1. Business Forms – Forms used in conveyance, or of the forms of deeds, instruments or documents creating, transferring, modifying or limiting rights to real as well as personal properties, and other forms related to business contracts or transactions. (Legal Forms, Suarez 2007) 2. 3. Judicial Forms – Forms which pertain to different kinds of pleadings, applications, petitions, affidavits, motions and the like. (Ibid) Q: What is a document? A: It is a writing or instrument by which a fact may be proven or affirmed. A document may either be private or public. 1.

2.

Private Document – a deed or instrument executed by a private person, without the intervention of a notary public or of other person legally authorized, by which a document, some disposition or agreement is proved, evidenced or set forth. Public Document a. An instrument authenticated by a notary public or a competent public official, with the formalities required by law b. An instrument executed in due form before a notary certified by him c. That which is made by a notary public in the presence of the parties who executed it, with the assistance of two witnesses. (Suarez, 2007)

A. COMMON FORMS 1. ACKNOWLEDGMENT Note: Acknowledgment is a statutory act such that only those instruments that are required by law to be acknowledged shall be acknowledged; it is also a personal act such that it cannot be acknowledged by a person other than the one who executed it. (Suarez, 2007) Q: What are examples of instruments that must be acknowledged? A: a. Deeds b. Conveyances d. Mortgages a. Leases e. Releases and discharges affecting lands whether registered under Act 496 or unregistered

Note: If not acknowledged, such documents will not be accepted by the Register of Deeds for registration. (Suarez, 2007) Note: The person who executed the instrument is the one who executes an acknowledgment. Q: When is an acknowledgment made? A: An acknowledgment is made in documents where there is transfer or conveyance of title to property, transmission of rights or manifestation of agreement of parties (fulfillment of a prestation to give, to do or not to do). Note: It should be used only in contracts, never in affidavits or sworn statements. (Albano, Albano, Jr. and Albano, 2004) Q: What is the meaning of Scilicet or “S.S.”? A: “S.S.” literally means more particularly (Suarez, 2007), to wit, or namely (Guevara, 2010). It is used to particularize a general statement. (Ibid) In notarized documents, it indicates that the legal document was executed in the designated place within that particular jurisdiction for such an act. Note: The omission of “S.S.” in a legal document is not material so as to invalidate it. (McCord, et al. v. Glenn, 6 Utah 139, 21 Pac. 500; Guevara, 2010) Q: What are the contents of an acknowledgment? A: [1] Title of the notarial act [2] Place of execution [3] Date [4] Name of person acknowledging the document (as well as name/s of the entity/ies being represented, if such is the case) [5] Competent evidence of identity presented [6] Date and place of issue of the competent evidence of identity presented [7] Acknowledgment made to the notary public that it is the person’s voluntary act and deed [8] Type of document executed and number of pages [9] Notarial certificate [10] Identity of notary public [11] Details of the notarial register [12] If executed in a representative capacity, a statement to that effect Form 1: General Form of Acknowledgment [1] ACKNOWLEDGMENT [2] REPUBLIC OF THE PHILIPPINES) PROVINCE OF _______________) CITY/MUNICIPALITY OF _______) S.S. [3] BEFORE ME, a NOTARY PUBLIC for and in the above jurisdiction, this ___ day of _____, 2012, personally appeared the following persons

[4] NAME [5] IDENTIFICATION [6] DATE AND PLACE OF ISSUANCE ____________________ ___________________ _______________________ ____________________ ___________________ _______________________ [7] Known to me to be the same persons who executed the foregoing instrument and they acknowledged to me that the same is their own free and voluntary act and deed [12] and of the corporations herein represented. [8] This instrument refers to a (title of document) and consists of ___ pages including the page on which this acknowledgment is written and signed by the parties and their instrumental witnesses on each and every page thereof. [9] WITNESS MY HAND AND SEAL on the date and at the place above written.

[10] JUAN DELA CRUZ NOTARY PUBLIC- Makati City

A: The notary public. He certifies that the same was sworn before him. Q: When should jurats be executed? A: It is used in any notarized document that is declaratory in nature, such as: a. Affidavits b. Certifications c. Whenever the person executing the document makes a statement of facts or attests to the truthfulness of an event, under oath. Note: A jurat should be used only in affidavits, sworn statements, certifications, verifications and the like. Never use it in contracts. (Albano, Albano, Jr. and Albano, 2004) Form 2: Jurat REPUBLIC OF THE PHILIPPINES) PROVINCE OF _______________) CITY/MUNICIPALITY OF ______) S.S. [1] SUBSCRIBED AND SWORN to before me, in the Municipality/City of_____, this ____ day of ____, 2012, the affiant exhibiting to me his (any competent evidence of identity) issued by (issuing agency) on (date of issue) at (place of issue).

Appointment No. ____ [2] JUAN DELA CRUZ

Until December 31, 2012 Roll no. ____

NOTARY PUBLIC- Makati City

PTR no. ____, date of issue, place of

Appointment No. ____

issue Until December 31, 2012 IBP no. _____, date of issue, place of Roll no. ____

issue

PTR no. ____, date of issue, place of

Office Address: issue Email:

IBP no. _____, date of issue, place of Contact Number:

issue Office Address:

[11] Doc. No._____; Page No. ____; Book No.____; Series of 2012

Email:

2. JURAT Q: What is a Jurat? A: It is that part of an affidavit in which the officer certifies that the instrument was sworn to before him. It is not part of the affidavit. (Suarez, 2007) Note: Jurat is important as it gives the document a legal character.(Ibid) Q: Who executes a Jurat?

Contact Number: [3] Doc. No._____; Page No. ____; Book NO.____; Series of 2012

Q: What are the contents of a Jurat? A: Three (3) sections of Jurat: [1] The Notary’s declaration regarding when and where the person took an oath or affirmation as to the

document or instrument and his competent evidence of identity, bearing his picture and signature was presented. [2] The identity of the notary public with the following: a. Complete Name of the Notary Public b. Place of Commission c. Appointment Number d. Expiration Date of the Notarial Commission e. Roll Number f. PTR Number g. IBP Number Office Address [3] The details of the Notarial Register: a. Document Number b. Page Number c. Book Number d. Series Number (year)

3. PLEADING Q: What are pleadings? A: Pleadings are the written statements of the respective claims and defenses submitted to the court for appropriate judgment. (Sec. 1, Rule 6, RRC) Q: What is the purpose of a pleading? A: Its purpose is to define the issues and form the foundation of the proof to be submitted at the trial. It narrows the case down to a specific issue or issues which will be submitted to the court for trial and judgment. (Suarez, 2007)

Q: What are the parts of a pleading? A: Cap-Ti-BRA PLUS [1] Caption [2] Title [3] Body [4] Relief [5] Attorney [6] PLUS a. Verification, if required b. Certificate of non-forum shopping, when appropriate c. Notice of hearing, when required d. Proof of service e. Explanation

4. PRAYER Q: What is a Prayer? A: This is a part of the pleading which states the relief or reliefs prayed for by the parties. Note: It is not a part of the cause of action. Note: The relief or reliefs prayed for may be proper or not, but as long as the plaintiff deserves a relief, the court will grant him the relief to which he is entitled under the facts as proven. (Guidotte v Yeung, CA-CR No. 6268, July 10, 1951)

6. CERTIFICATION OF NON-FORUM SHOPPING Q: What is a certificate of non-forum shopping?

A: It is a certification under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed to such pleading and simultaneously filed therewith, where the party: a.

b. c.

Certifies that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending. If there is such other pending action or claim, gives a complete statement of the present status thereof Undertakes that if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Q: What is the consequence on failure to execute such certification when necessary? A: Failure to comply shall be cause for dismissal of the case without prejudice, unless otherwise provided, upon motion and hearing. The foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading. (Suarez, 2007) Note: Submission of a false certification or noncompliance with any of the undertakings shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. Q: Who executes the certification against forum shopping? A: The plaintiff or principal party Q: When should the certification be executed? A: It is executed simultaneously with a complaint or any other initiatory pleading.

7. VERIFICATION What is verification? A: It is a statement, under oath that the pleading is true. It includes both the actual swearing to the truth of the statements by the subscriber and also the certification thereto by the notary or other officer authorized by law to administer oaths. (Pamaran, 2004) Q: When is verification necessary? A: Verification is necessary only when the law or rule specifically requires it. Example, under the Rules of Court, verification is necessary in the following pleadings: 1. Complaint and other initiatory pleadings 2. Answer, if there are actionable documents 3. Petition for review under Rule 42, RRC 4. Appeal from CTA and quasi-judicial agencies to the CA (Rule 43, RRC) 5. Appeal by certiorari under Rule 45, RRC 6. Certiorari, prohibition and mandamus (Rule 65, RRC)

Q: What are the contents of verification? A: It contains a statement that an affiant has read the pleading, that he has caused the preparation of said pleading and that the allegations therein are true and correct based on authentic records and of his personal knowledge. Form 8: Verification Republic of the Philippines) City of _______________ ) S.S. (Person verifying) after having been duly sworn deposes and says that he is the (designation) in the above-entitled (name of pleading); that he has caused its preparation; that he has read it and the allegations therein are true and correct based on his personal knowledge and based on authentic records. Party verifying JURAT

Form 9: Verification and Certification of Nonforum Shopping Republic of the Philippines) City of ________________) S.S. (Person verifying) after having been duly sworn deposes and says: 1. That he is the (designation) in the above- entitled (name of pleading); that he has caused its preparation; that he has read it and the allegations therein are true of his own personal knowledge and based on authentic records; 2. That he certifies that he has not heretofore commenced any action or filed any claim involving the same issues before any other court, tribunal or quasijudicial agency, that to the best of his knowledge, there is no other pending action or claim, and that if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report such fact within five (5) days therefrom to this Honorable Court. Party executing JURAT

B. BUSINESS FORMS Note: Conveyance is a deed whereby the ownership of a real property is transferred from one person to another. (Suarez, 2007)

1. CONTRACTS A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. (Art. 1305, NCC)

Contract is a juridical convention manifested in legal form, by virtue of which one or more persons or parties bind themselves in favor of another or others, or reciprocally, to the fulfillment of a prestation to give, to do or not to do. Q: What are the parts of a contract of lease of personal property? A: TAP-WAC-SA [1] Title [2] Announcement [3] Parties [4] Conditions or terms [5] Signatures [6] Acknowledgement

Q: What are the parts of a contract of lease of real property? A: TAP-WAC-SA [1] Title [2] Announcement [3] Parties [4] Whereases [5] Agreement proper [6] Conditions or terms [7] Signatures [8] Acknowledgement Note: State citizenship, if the transaction involves titled property. (Albano, Albano, Jr. and Albano, 2004) Note: State marital status, if the transaction involves titles real property. If a party is married, state full name and his/ her citizenship. (Ibid) Note: In the “whereas” clauses, the representations of the parties as well as their respective intentions or motives, are usually stated. (Ibid)

2. DEED Q: What is a deed? A: A deed is a written instrument under seal containing a contract or agreement which has been delivered by the parties to be bound and accepted by the obligee or covenantee. (Suarez, 2007) Note: In a deed, a person disposes of his property or right in favor of another. Q: What is the difference between a deed and a will? A: A deed, once executed and delivered is irrevocable in the absence of reservation of the right to revoke. On the other hand, a will operates only upon and by reason of the death of the maker. During his lifetime, it is ambulatory and revocable. Q: What are the typical parts of a deed? A: TAP-CAP-SA [1] Title [2] Announcement [3] Party one [4] Consideration [5] Act or Conveyance

[6] Party two [7] Signatures [8] Acknowledgment Note: You can use this pattern for all kinds of deeds. You need only vary the “act or conveyance” portion to convert it into a deed of assignment, a deed of easement of right of way, a deed of real estate mortgage, a deed of chattel mortgage, and others.

3. POWER OF ATTORNEY Q: How is a General Power of Attorney different from Special Power of Attorney? A: A special power of attorney is a very limited power of attorney as it allows the Attorney-in-Fact to do only those things specified by the principal. The authority granted is usually very limited and clearly defined in the power of attorney form. A general power of attorney allows the Attorney-in-Fact to do anything the principal would legally be able to do in his name. Q: What are the parts of a general power of attorney? A: VeT-PAP-GA [1] Venue and Title [2] Personal Circumstance [3] Appointment operative words [4] Power [5] Granting authority operatives [6] Acknowledgment

Q: What are the parts of a special power of attorney? A: VeT-PAP-GA [1] Venue and Title [2] Personal Circumstance [3] Appointment operative words [4] Power [5] Granting authority operatives [6] Acknowledgment

Q: A: [1] [2] [3] [4]

[5] Jurat

JUDICIAL FORMS Note: All judicial forms have one mold or pattern. The parts of a typical judicial form are: [1] Caption [2] Title [3] Introduction [4] Body [5] Relief [6] Attorney [7] Plus or addendums

1. AFFIDAVITS Q: What is an Affidavit? A: It is an ex parte statement in writng made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his personal knowledge or is aware of to the best of his knowledge. (Khan, Jr., 2007) Q: Is oath similar from an affidavit? A: No. An affidavit consists of statement of fact which is sworn as to the truth, while an oath is a pledge. (Suarez, 2007) Q: Who is an affiant? A: It refers to a person who signs an affidavit and swears to its truth before a Notary Public or some person authorized to take oath Q: What are the parts of a typical sworn statement or affidavit? A: [1] Venue [2] Title [3] Person [4] Oath [5] Statement [6] Signature [7] Jurat

What does a secretary’s certificate contain? Personal circumstances of the secretary Date of the Meeting and Resolution of the Board Resolutions still in force Jurat

Note: Being regular on its face, a Secretary's Certificate is sufficient for a third party to rely on. It does not have to investigate the truth of the facts contained in such certification; otherwise business transaction of corporations would become tortuously slow and unnecessarily hampered.

Q: What does a treasurer’s affidavit contain? [1] Name of treasurer [2] Election as treasurer [3] Certification as to amount of subscription received (25%-25% rule) [4] Authority to examine account

Q: What is an Affidavit of Merit? A: It is an affidavit which states that the defendant has a meritorious defense of a substantial and not merely technical nature and stating the facts constituting the same. Note: In executing an affidavit, the affiant’s primary qualification is that he has knowledge of the facts which he states, and the truth of which he affirms. (Suarez, 2007)

Q: What is an Affidavit of Good Faith? A: A certificate included in the chattel mortgage contract executed by both the mortgagor and mortgagee that the mortgage is constituted to secure

the specified obligation, and that the said obligation is a valid, just and subsisting obligation and not one entered into for the purpose of fraud. (Sec. 5, Chattel Mortgage Law)

2. MOTIONS Q: What is a motion? A: A motion is an application for relief other than by a pleading. (Sec. 1, Rule 15) Note: A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (Sec. 3, Rule 15, RRC) Note: The plus for a motion is the notice of hearing (mandatory if the motion is a litigated motion). If filing

of a pleading or service of its copy on adverse party is done by registered mail, another plus is the need to give an explanation why personal filing or service could not be done. Q: What are the parts of a motion: [1] Caption [2] Title of the case [3] Body of the motion Note: The body of a motion usually has two parts: a. The ground for the motion b. The argument in support of the motion [4] [5] [6] [7]

Prayer Place, date and signature Notice of Hearing Proof of Service...