DEED OF SALE OF REAL PROPERTY IN A PUBLIC INSTRUMENT

Read also: Legal Implications of a Forged Deed of Sale

• A public instrument is one which is acknowledged before a notary public or any official authorized to administer oath, by the person who executed the same.

• Contracts shall be obligatory in whatever form the parties have entered them.

• Public documents enjoy the presumption of validity and regularity.

Contracts may be oral, or in writing, or partly oral and partly in writing. If in writing, it may be in a public or a private instrument.

A public document or instrument is one which is acknowledged before a notary public or any official authorized to administer oath, by the person who executed the same. The party making the acknowledgment formally declares that the instrument is his free act and deed while the officer taking the same attests and certifies that such party is known to him and that he is the same person who executed the instrument and acknowledged that the instrument is his free act and deed.

Any other instrument is private.

A private document, however, acquires the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law.

 

Under the Civil Code:

Contracts shall be obligatory in whatever form the parties have entered them provided all the essential requisites of the contract are present – the consent, the object and the consideration.

However, the form is required in the following cases:

1. when the law requires that a contract be in some form to be valid;
2. when the law requires that a contract be in some form to be enforceable or proved in a certain way; or
3. when the law requires that a contract be in some form for the convenience of the parties or for the purpose of affecting third persons.

ART. 1358 of the Civil Code further provides that sales of real property must appear in a public document.

In a contract of sale involving an immovable property, such as a house and lot, the law requires it to be in a public instrument. But the public document is required only for the convenience and greater protection of the parties and registration is needed only to make the contract effective as against third persons.

In other words, the law does not require accomplishment of certain acts or contracts in a public instrument in order to validate the act or contract but only to insure its efficacy so that after the existence of the act or contract has been admitted or established, the party bound may be compelled to execute the document.

Formal requirements are, therefore, for the benefit of third parties for the purpose of informing as well as binding them. Non-compliance therewith does not adversely affect the validity of the contract nor the contractual rights and obligations of the parties thereunder.

In case the contract of sale of real property is in a private document, the contract is still binding and valid between parties. However, as compared to a public document, the public document is admissible in evidence in court without further proof of its authenticity and due execution. Public documents enjoy the presumption of validity and regularity.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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