Why are legal documents important? This article will discuss how vital legal documents are in our world today. This will exemplify the need and indispensability of legal documents in our lives. These, we cannot forego since what may be at stake are our lives, liberty, and property. More significantly in property, it is best to have every juridical relation placed in a “black and white document”, as we will see herein below.
What is the meaning of legal document?
In simple terms, a legal document is a valid document which concerns legal matters and is often prepared by a lawyer. It is also defined as any document that confers, transfers, limits, charges, or extinguishes any right, title, or interest in a property or simply any document pertaining to legal proceedings that may be brought against other persons.
Another definition is that it is any document which affects a person’s legal rights that may involve a deed, will, or any document filed in court. A legal document is truly a broad term and has procured numerous definitions as evidenced by the preceding definitions.
Nevertheless, one thing in common among these definitions is that a legal document is a binding document that may be enforced or presented in court proceedings.
Why are legal documents important?
Legal documents are essential for protecting your rights, property, and possessions. They also help to create your reputation while also supplying evidence of your transactions in court. Legal documents safeguard you from the hazards of not receiving what you desire or having someone else get it for themselves. They can be used to back up claims for damages, such as those resulting from carelessness or breach of contract.
Legal papers are significant because they serve as the foundation for all subsequent legal proceedings, such as arbitration. There would be no court system and no method to settle disputes, effectively and efficiently, if they did not exist.
Contracts and wills are essential legal documents because they may be used to determine property ownership and other concerns. A contract between two parties, for example, may specify how property will be split in the event of divorce or death, or how an inheritance would be dispersed.
A will may also specify what happens to property if a beneficiary dies before reaching the end of his or her life expectancy. These documents are intended to verify that certain objects are controlled by a single person rather than numerous persons sharing them.
Legal documents are important because they protect one party from being defrauded by another in an agreement. Though verbal agreements are valid, they do not offer the same protection provided by written agreements. Furthermore, legal documents possess weight in resolving disputes in court proceedings.
What are legal documents?
A legal document, in general, is a document that outlines an agreement between parties which has been substantiated by their respective signatures, and for all other purposes can be relied upon in court. To be enforceable, a legal document must outline the terms and conditions of the agreement and must also adhere to the elements for its validity, such as:
(a) mutual assent,
(b) offer and acceptance,
(c) consideration, (d) legality, and
What are the benefits of having legal documents?
One of its advantages is that a legal document is a legally binding document wherein a legal remedy can be sought should there be a breach of the agreement. To put it simply, one party can protect himself against future loss or harm by setting up a legal document which would outline the terms and conditions as to how the other party should act in accordance with the tenor of the agreement.
Corollary to this, the protection that a legal document provides will strengthen and improve the relationship between the parties in the agreement because the parties know that they can rely on the legal document which would help prevent breaches of the agreement from occurring in the first place.
Importance of Legal Documents in Business
Legal documents are important in a business because some of these are the essential requirements for starting a business in the Philippines. The consequences of starting a business without proper compliance of the legal requirements might include closure of business, imposition of monetary fines, and, in the worst-case scenario, imprisonment.
Aside from compliance with the law, legal documents are also significant to ensure proper governance in business which is followed by the company reputation and possible clients because good governance will attract possible clients and thus will improve company reputation. The ambit of good governance includes setting up legal documents to protect the company and its consumers to avoid every possibility of being sued in an expensive litigation.
Legal documents for business
Starting a business requires a lot of documentary requirements to be accomplished to ensure compliance with the law. After the documentary requirements, other legal documents are also needed for the protection and proper handling of business. The legal documents for a business may include the following:
- Business permits and registrations which includes the registration with the appropriate governing body such as Department of Trade and Industry (DTI) for sole proprietors and Securities and Exchange Commission (SEC) for partnerships and corporations, clearances and other municipal permits applicable;
- Articles of Incorporation and Bylaws for corporations;
- Confidentiality Agreements (i.e., Non-Disclosure Agreement)
The above enumerated items are some of the common legal documents used in a business. There are other documents which a business may make use of depending on the type of transaction it intends to create and/or protect.
How can legal documents help your business?
The above-mentioned legal documents and other legal documents used in the business will greatly help the business to be protected under the law, to protect its consumers, and to handle the business properly.
- To be protected under the law
Complying with the required legal requirements and documents will protect the business through the establishment of its rights and obligations as provided in the legal documents and may avoid being faced with negative consequences.
- To protect the consumers
The legal documents will protect the business by ensuring that its clients are protected as well, it may be through establishment of Non-Disclosure Agreement (NDA) with the employees to protect the privacy and confidentiality of the service being provided to the clients and/or by providing the consumers a contract and terms and conditions for them to know their rights and remedy, if applicable.
- To handle business properly
Some important legal documents, such as the company bylaws, will greatly help the business build its foundation in the proper conduct of business. Moreover, the appropriate legal documents will also help to ease and improve the business processes.
Importance of Legal Forms in Law Enforcement
Law enforcement is defined as an act of enforcing the law executed by a lawful enforcement officer who is an employee of the government. He is responsible for the proper investigation, apprehension, prevention and detention of individuals who are convicted or suspected of committing an offense which is against the law.
As law enforcers, their primary job is to make sure that the community is safe and protected. Law enforcement officers must have integrity and must be honest enough about the dissemination of laws because of the nature of our criminal justice system.
However, in enforcing the law, it is better to take note of the importance of legal documents as part of a more comprehensive and accurate enforcement of the law since it plays a vital role thereof. Legal forms are thought to be an element of the legal system that governs how the law functions and how the existing legislation gives and or permits.
For instance, as a police officer, studying the legal forms gives an opportunity that will able them to enhances their skills and to explore more about the aspects of their duties or functions. It offers chances to make them more knowledgeable on any procedural form on legal matters or transaction and have a better understanding on how they can practice law and the abstracting flow of legal knowledge.
Legal forms will also serve as guidance of the officers or enforcer of law which will also serve as their basis in order to accurately enforce the law. Moreover, legal forms may also help law enforcers or officers to primary focus on protecting the integrity of the investigation and the individuals involved.
Just like what is mentioned in the above statements, law enforcement primarily gives to its operation the right-to-know and need-to-know approach to information sharing. Hence, it is important that an officer must have the legal knowledge about the proper execution of the legal forms.
Importance of Legal Forms in Criminology
Legal forms in criminology are the application of legal forms in general in the criminal due process serving as binding written documents used in legal proceedings and usually utilized in relation to the conduct of law enforcement. Moreover, Legal forms is also a subject included in curriculum of the criminology majors in preparation for their practice as soon to be law enforcers.
Legal Forms are characterized by forms used in a legal transaction or judicial proceedings that contains the required information that may be stated in technical terminologies and structured in a systematic order in line with the circumstances specific to particular cases.Bajado-Nano & Pioquinto (2014). Technical Report Writing 2 for Criminology Students. Wiseman’s Books Trading, Inc.
Some examples of legal forms in criminology are affidavits, acknowledgement and jurat, complaints, information, summons, warrants and subpoena among others. Legal forms are generally subdivided into two (2) main categories.
One is business form, which are used in conveyancing, 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.Suarez, Rolando A. (2007). Legal Forms P. 32-34. Rex Printing Company, Inc.
The other is judicial form referring to forms which pertain to different kinds of pleadings, applications, petitions, affidavits, motions which are usually utilized in Ordinary Civil Actions, Special Civil Actions, Special Proceedings and Criminal Actions.Ibid.
In criminology the importance of legal forms is highlighted due to the fact that memories of people are short and relying upon the limited capacity of a human being to remember can be a dilemma especially when the consequence of the proceedings is deprivation of liberty.
In order to prevent this from happening legal forms are utilized in order to gather pertinent information in a structured and uniform manner to assist in the conduct of law enforcement and criminal proceedings.
Aside from the practicality of forms being used in the day-to-day activities of law enforcement, some statutes also require certain transactions and agreements to be in a specific form for it to be enforceable, thus rendering form indispensable and an integral part of the proceedings of law.
Characteristics of a legal document
A legal document must possess these characteristics in order for it to be easily understood and for it to serve its purpose:
- A legal document must be accurate. — the facts and information stated in a legal document must be accurate and free from error.
- A legal document must be concise. – it does not need flowery words or a very long explanation and unnecessary information which may be deemed irrelevant with its purpose.
- A legal document must be clear. – a legal document should be easily understood. It must be direct to the point and must capture the idea or information that it is trying to convey.
- A legal document must be organized. – the flow of facts and information must coherent so that the transition of points works together well and is able to deliver the purpose of the document in the right movement.
What are the legal documents in a law firm?
A document is a writing or instrument by which a fact may be proven or affirmed. A document may either be a: (a) private document; or a (b) public document.
A private document is a deed or instrument executed by a private person, without the intervention of a notary public or of other person legally authorize, by which a document, some disposition or agreement is proved, evidenced or set forth. Common examples of private documents in a law firm are contract of sale, lease, mortgage deeds, and power of attorney.
A public document is an instrument authenticated by a notary public or a competent public official, with the formalities required by law. It is an instrument executed in due form before a notary public in the presence of the parties who executed it, with assistance of two witnesses. Examples of public documents in a law firm are affidavits and authentications.
What types of legal documents are there?
There are various types of legal documents that lawyers make depending on the purpose and the intended reader of the document. Inside the court while representing as a counsel for the parties in a case the lawyers prepare several legal documents.
To name a few of these legal documents, are: complaints, answers, replies, motions, and memoranda. These documents are prepared and used at various stages throughout the duration of the whole trial. On these legal documents lies the faith of the client.
Once the layer was appointed to sit on the bench as a judge, there are also legal documents that he needs to write in relation to the exercise of his function. Examples of the legal document prepared by a judge are decisions, court orders like warrants, and various writs. These documents adjudicate the controversy or grant temporary relief to either of the parties in the litigation.
Even outside the courtroom, a lawyer prepares several legal documents. Name a few of these documents, are contracts, opinions, and advice. These types of legal documents that the lawyer prepares outside the court setting is aimed to lend the legal knowledge and expertise of the lawyer to his clients.
So, as a lawyer, one prepares numerous kinds of legal documents for various purposes and occasion. In all of these, the lawyer uses his legal knowledge carefully to craft and prepare these documents. Each of the documents have its own importance and function in the exercise of justice.
What should you consider when creating legal documents?
There are several considerations that needs to be considered in creating legal documents. Some of these things are:
- Correct grammar. As in all kinds of writing grammar needs to be always considered. There is an added emphasis on this on the case of a legal documents. Since wordings and sometimes punctuations matter on the law and terms.
- Lawyers are taught to be always precise in communication. Therefore, a well-prepared legal document reflects this level accuracy on its words and terminology. Especially on the case of contracts, accuracy minimize the needs for interpretation and puts the party on the exact intended position they aim upon entering the contract.
- Lawyers are known for using legal jargons and highly technical terms. But most of the times, these legal documents are with end up in the hands of a non-lawyer. Simplicity bridges the gap between the complex laws in the mind of the lawyer and the common knowledge of law in the mind of the none lawyer.
- Maybe this one of the things that needs greater consideration. Depending on the purpose for what the legal document is intended, some things may change. The form of the document may change. The tone of the whole document may also change depending on the purpose.
What are contractual documents?
Contractual documents refer to the Agreement, a document or any other document attached or related to a particular contract. As provided in Article 1305 of the Civil Code of the Philippines, 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.Article 1305, Civil Code of the Philippines, Official Gazette
In contractual documents, the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy as provided under the Civil Code of the Philippines.Article 1306, Civil Code of the Philippines, Official Gazette
In addition, pursuant to Art. 1311 of Civil Code of the Philippines, it provides that:
“Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent.”Article 1311, Civil Code of the Philippines, Official Gazette
How do you prepare contractual documents?
Usually, contractual documents often follow a particular format or legal form. Being the physical manifestations of the agreement between contracting parties, there are different form for each type of contract, be it a contract of sale, lease contract or an employment contract. It usually follows such prescribed form. But if you were to prepare one, how would you do it?
Before we delve into the preparation of the contractual documents, we must first know the following details: first, what was the contract for? Second, what should be included in the contract? Third, are all the parties legally allowed to be in the contract? and fourth, are the elements for the valid contract met? If all the questions are answered affirmatively, then we can start in drafting the contract.
Usually, there is already a standard template for a respective type of contract. We will start using that standard contract template. After that, we need to fill the basic information required in the contract template. Once all basic information has been filled, the agreement for the contract must be described in detailed without leaving any pertinent information.
It should include the terms and conditions of the said agreement, the start of the contract and how it will end. The contracting parties may add stipulations, clauses, terms and conditions as they see fit provided that they are not in violation of any law, morals, good customs, public order or public policy.
If possible, the parties can also indicate in the contract, the manner on how disputes will be resolved, if any occurs during the contract duration. Finally, the contracting parties must acknowledge the said contractual document.
Is a Notarial Will a legal form?
Legal form is a type of an instrument to be employed in a legal transaction or legal proceedings. A notarial will, on the one hand, is a will that which requires, among other things, an attestation clause, and acknowledgment before a notary public.
A notarial will or ordinary will is a legal form. As an instrument authenticated by a notary public or a competent public official it is considered a public document.Article 806, Civil Code of the Philippines, Official Gazette
How do you prepare a notarial will? (Arts. 804-809, Civil Code)
In Article 783 of Republic Act No. 386, also known as the Civil Code of the Philippines, a will is defined as an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.Article 783, Civil Code of the Philippines, Official Gazette
Under the Civil Code there are two kinds of wills allowed in the Philippines, namely, holograph or holographic will and ordinary or notarial will.
Article 810 of the Civil Code defines holograph or holographic will as one 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.Article 810, Civil Code of the Philippines
Stated otherwise, the most important feature of which is its being written entirely, from the date to the signature, in the handwriting of the testator. Here, neither an attestation clause nor an acknowledgment before a notary public is needed.
Ordinary or notarial will, on the other hand, is a will that requires, among other things, an attestation clause, and acknowledgment before a notary public. The execution of an ordinary or notarial will is governed by the Civil Code particularly in Article 805 thereof, which states that:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s 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.Article 805, Civil Code of the Philippines, Official Gazette
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.Id.
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.Id.
As a rule, personal appearance before a notary public is required in a notarial will, so in addition, the notarial 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.”Article 806, Civil Code of the Philippines, Official Gazette
Thus, as ruled in the case of Gonzales v. Court of AppealsG.R. No. L-37453, May 25, 1979 if a will is duly acknowledged before a notary public, there is in its favor the presumption of regularity. Obviously, a ‘notarial will’ not acknowledged before a notary public by testator and the witnesses is fatally defective.Civil Code, Volume III (Wills & Succession) Edgardo L. Paras Sixteenth Edition 2008
In the event that the testator is deaf or deaf-mute Article 807 further requires that “he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.”Article 807, Civil Code of the Philippines, Official Gazette
On the other hand, if the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. Article 808, Civil Code of the Philippines, Official Gazette
Are mistakes allowed in a will? In the foregoing requirements there is what we call substantial compliance. This rule is contemplated in Article 809 of the Civil Code that provides:
“In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.”Article 809, Civil Code of the Philippines, Official Gazette
According to De Leon,Comments and Cases on Succession, Hector De Leon, 5th Edition, 2006 there must be a strict compliance with the substantial requirements of an attestation clause of the will to ensure its authenticity but formal imperfections which do not affect the will, must be disregarded so as not to defeat the testator’s wishes. Therefore, as long as substantial compliance is met the notarial will will be considered valid under Philippine law.
Furthermore, the same Code also provides that every will must be in writing and executed in a language or dialect known to the testator.Article 804, Civil Code of the Philippines, Official Gazette
Thus, in Suroza v. Honrado,A.M. No. 2026-CFI December 19, 1981 the Court declared the will void because in the opening paragraph of the will, it was stated that English was a language “understood and known” to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix “and translated into Filipino language”.Ibid.
That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed.
Meanwhile, the rule in the attestation clause is different. Attestation clause, as defined in the case of Toray v. Abaja,G.R. No. L-2415, July 31, 1950 is meant “that clause wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same.”Ibid.
Its purpose is to preserve in permanent form a record of the facts attending the execution of the will so that in case of failure if memory of the witnesses or in case they are no longer available, such facts may still be proved.Leynez vs. Leynez, G.R. No. L-46097, October 18, 1939
Since it is not a part of the testamentary disposition, the attestation clause of the ordinary or notarial will need not be in the language or dialect known to the testator, if not altogether known to him.
However, Article 805, par. 4 of the Civil Code states that even the witness to the will need not know the language or dialect used in the attestation clause, the law requires that it be interpreted to them, if they do not know it.((Supra., Toray vs. Abaja))
All in all, aside from the fundamental requisites that the testator be at least 18 years old, and possessed of a sound mind, the following are the requisites of a valid notarial will, to wit:
The will must be in writing. There can be no oral will.
It must be executed in a language or dialect known to the testator.
It must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence or direction.
It must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
It must be signed on each and every page thereof by the testator and the witnesses, except the last page, on the left margin.
All pages must 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 therefore, 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.
It must be acknowledged before a notary public by the testator and the witnesses.Comments and Cases on Succession, Hector De Leon, 5th Edition, 2006
How to prepare legal documents for court?
Preparing a legal document is not an easy task, one should have sufficient knowledge about the types of legal document, and know how to effectively and efficiently accomplish it.
To prepare legal documents, the following steps may be considered
- Determine the type of legal document to prepare for the court. It may be a complaint, an answer, a reply etc.
- Determine the purpose of the document
- Research for the specific requirements of the legal document
- Draft the legal documents. Indicate therein the names of the party and give a brief explanation of the legal issue and share any relevant legal details regarding it, like facts or evidence.
In general, before you begin preparing the legal document, you must plan out the document, write with clear and concise language, and revise, as may be necessary.
What are pleadings?
According to Black’s Law Dictionary,Black, Henry Campbell, Blacks Law’s Dictionary, Revised Fourth Edition by The Publisher’s Editorial Staff. ST. Paul, Minn., West Publishing Co. 1968 pleading is the process performed by the parties to a suit or action, in alternately presenting written statements of their contention, each responsive to that which precedes, and each serving to narrow the field of controversy, until there evolves a single point, affirmed on one side and denied on the other, called the “issue,” upon which they then go to trial.
The name “a pleading” is also given to any one of the formal written statements of accusation or defense presented by the parties alternately in an action at law; the aggregate of such statements filed in any one cause’ are termed “the pleadings.”
Section 1, Rule 6 of the 1997 Rules of Civil Procedure,Rule 6, Section 1, Rules of Court of the Philippines defined pleadings as the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.
Pleadings are written declarations of affirmation on one side and denial by the other. The rules require that every pleading shall contain in a “methodical and logical form” a “plain”, concise and direct statements” of the ultimate facts relied upon by the pleader for his claim or defense.
Statements of mere evidentiary facts must be omitted. If the defense relied upon is based on law, the pertinent provisions of the law and their applicability to the case shall be clearly and concisely stated.
What is the purpose of pleadings?
The purpose of pleadings is to define for the court the issues of laws or fact raised by the parties. As pleadings are the basis as to what evidence would be presented in court, it is important that the statements in a pleading which merely aver that acts were done in bad faith without stating the facts showing that the acts were done in the manner alleged do not establish any right or cause of action.Tabucanon, Gil Marvel A. and Mockson, David A., Legal Writing: A Competency-Based Approach. Rex Book Store, 1977
What are the kinds of pleadings?
There are several kinds of pleadings including;
- The complaint
- Third (fourth, etc)-party complaint
Parts of a pleading
The parts of a pleading are the following:
- Body of the pleading;
- Signature and address;
- Verification; and
- Certification against forum shopping.
The caption sets forth the name of the court, the title of the action, the court docket number, if assigned, and the designation of the pleading, for example the type of case being filed be it damages or Mandamus. In the title of the action, the names of the parties shall be indicated.
They shall all be named in the original complaint or petition. But in subsequent pleadings, it suffices to include only the name of the first party on each side with an appropriate indication, for example adding the name of the first party with the phrase “et al.”
The body of the pleading sets forth its designation or type of pleading filed, the allegations or statements of the party’s claims or defenses, the relief or remedies prayed for, and the date of the pleading.
Section 3 of the Rules requires that every pleading must be signed by the party or his counsel, wherein the address of the party or his lawyer must be indicated. The signature of the lawyer constitutes a certification by him that he has read the pleading and document; that to the best of his or her knowledge, information, and belief there is good reason to support it. The lawyer likewise certifies that the pleading is not interposed for delay.
An unsigned pleading has no legal effect, and the lawyer shall be subject to appropriate disciplinary action if it proved that he deliberately files an unsigned pleading, fails to promptly report to the court a change of his address, or signs a pleading in violation of the Rules.
How is Pleading verified?
A pleading is verified by an affidavit stating that the affiant, on behalf of a party, has read the pleading and the allegations therein are true and correct based on his or her personal knowledge, or based on authentic documents.Id.
A pleading which the law or rule requires to be verified stating that the same is based on “information and belief,” or upon “knowledge, information and belief,” or lacks a proper verification, shall be treated as an unsigned pleading.Id.
The rules also require the plaintiff or principal party to certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed and simultaneously filed with the pleading:Rule 4, Section 5, Rules of Court
(a) that he has not 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 therein;Id.
(c) if he should learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five calendar days to the court where the aforesaid complaint or initiatory pleading has been filed.Id.
What are motions?
Motions is covered under the Rule 15 of the 2019 Amended Rules on Civil Procedure wherein it defines such as an application for relief other than by a pleading. It further states that all motions shall be in writing except those made in open court or in the course of a hearing or trial.Rule 15, Section 1, Rules of Court
It shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers.
There are two types of motions, the non-litigious, which the court may act upon without prejudicing the rights of adverse parties are non-litigious motions, and litigious, where hearing is discretionary.Sections 4 and 5, Rule 15, Rules of Court, 2019 Amendments
- Motion for the issuance of an alias summons;
- Motion for extension to file answer;
- Motion for postponement;
- Motion for the issuance of a writ of execution;
- Motion for the issuance of an alias writ of execution;
- Motion for the issuance of a writ of possession;
- Motion for the issuance of an order directing the sheriff to execute the final certificate of sale; and
- Other similar motions.
- Motion for bill of particulars
- Motion to dismiss
- Motion for new trial
- Motion for reconsideration
- Motion for execution pending appeal
- Motion to amend after a responsive pleading has been filed
- Motion to cancel statutory lien
- Motion for an order to break in or for a writ of demolition
- Motion for intervention
- Motion for judgment on the pleadings
- Motion for summary judgment
- Demurrer to evidence
- Motion to declare defendant in default
- Other similar motions
What is a court process?
Court process is defined as any means used by court to acquire or exercise its jurisdiction over a person or over specific property. It is a means whereby court compels appearance of Defendant before it or a compliance with its demands.((See the case of AJIBOLA v SOGEKE (2003) 9 NWLR (Pt 826) 494))
Court process, in order to acquire or exercise its jurisdiction, needs to be served to concerned parties and failure to such may lead to nullification or setting aside the proceedings of the case. Courts acquire jurisdiction by a valid service of summons or through their voluntary submission.Manotoc vs. Court of Appeals, G.R. No. 130974, August 16, 2006
How do you define Summons?
According to Barron’s Law Dictionary, summons is a mandate requiring the appearance of the defendant in the action in court under the penalty of having judgment entered (against him or her) for failure to do so. The reason for its issuance is to notify the defendant that he or she has been sued.
In a civil case, it is issued by the Court to acquire jurisdiction over the person of the defendant or the person being sued. With this, it allows the defendant to participate in the court proceedings, and be subject to its processes and judgments. Here, the requirement of due process is essentially satisfied.
What are effects of issuing summons?
With respect to plaintiff, the issuance of summons would mean that he has paid the legal fees, the case has a docket number, and the court has not dismissed the case for lack of jurisdiction over the action, litis pendentia (two pending cases involving the same parties, issues and reliefs), res judicata (previous judgment), or statute of limitations contemplated under Rule 9, Section 1 of the 2019 Amended Rules of Civil Procedure.
While for the defendant, the receipt of the summons means that from that point, the time for him to file an answer is starting to run out. Under the 2019 Amended Rules of Civil Procedure, the period to file an Answer is 30 days.
The defendant may also opt to file a Motion to Dismiss on grounds enumerated in Rule 15, Section 12 of the same Rules. If he fails to file an Answer, Rule 9, Section 3, of the Amended Rules decreed that he can be declared in default.
What are the contents of Summons?
Under Rule 14, Section 2 of the 2019 Amendments, the summons shall be directed to the defendant, signed by the clerk of court under seal, and contain:Rule 14, Section 2, Rules of Court, 2019 Amendments
- The name of the court and the names of the parties to the action;Id.
- When authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant.Id.
- A direction that the defendant answer within the time fixed by these Rules; andId.
- A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.Id.
By whom served?
Section 3, Rule 14 of the 2019 Amended Rules of Civil Procedure provides that the summons may be served by the sheriff, his deputy, or other proper court officer, and in case of failure of service of summons by them, the court may authorize the plaintiff – to serve the summons – together with the sheriff.Rule 14, Section 3, Rules of Court, 2019 Amendments
If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its authorized representative therein, attaching a board resolution or secretary’s certificate thereto, as the case may be, stating that such representative is duly authorized to serve the summons on behalf of the plaintiff.Id.
If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served, the case shall be dismissed with prejudice, the proceedings shall be nullified, and the plaintiff shall be meted appropriate sanctions.Id.
Modes of Service of Summons
The following are the modes of serving summons:
- personal service;
- substituted service;
- constructive service (by publication); and
- extraterritorial service.
In order to understand more about legal definition and significance of summons in the Philippines, Rule 14 of 2019 Amended Rules of Civil Procedure is the source that you needed to search about. In that part, you will also understand its validity, the issuance of alias summons, and the intricacies of serving it to different kind of scenarios and situations.
What is a Writ?
Writ comes from Old English, as a term denoting written matter, which is itself from the Old Germanic base of “write” (gewrit). According to legal luminaries, it refers to a formal, legal document that orders a person or entity to perform or to cease performing a specific action or deed.
It is drafted by judges, courts, or other entities that have administrative or judicial jurisdiction. These documents are issued after a judgment was made, giving those involved in a suit the ability to carry out the judgment. It can take many forms including summons, writs of execution, writs of habeas corpus, warrants, and orders.
How Writs Work?
It provides directions from an entity that holds jurisdictional or administrative power to another party. It was developed over time as a way for the authorities to direct others to perform specific actions. This means that a writ provides an order from a higher to a lower court, from a court to an individual or other entity, or from a government agency to another party. It may command the named party to take some form of action or it may prevent that party from continuing to act or operate in a certain way. The Court today also uses writs as a way to give extraordinary relief or to provide rights to appeal court decisions.
Example of Writs
- Writ of certiorari. It was limited to cases in which the inferior court was said to be exceeding its jurisdiction or was not proceeding according to essential requirements of law and would lie only to review judicial or quasi-judicial acts.Deepak Kumar vs. People of the Philippines, G.R. No 247661, June 15, 2020
- Writ of habeas corpus. It was devised and exists as a speedy and effectual remedy to relive persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to have ascertained if he is held under lawful authority.Villavicencio vs. Lukban, G.R. No. 14639, March 25, 1919
- Writ of Amparo. It is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances.Lucena vs. Elago, G.R. No. 252120, September 15, 2020
- Writ of Kalikasan. It is an extraordinary remedy covering environmental damage of such magnitude that will prejudice the life, health or property of inhabitants in two or more cities or provinces. It is designed for a narrow but special purpose: to accord a stronger protection for environmental rights, aiming, among others, to provide a speedy and effective resolution of a case involving the violation of one’s constitutional right to a healthful and balanced ecology that transcends political and territorial boundaries, and to address the potentially exponential nature of large-scale ecological threats.Paje vs. Casiflo, G.R. Nos. 207257, 207276, 207282 & 207366, February 3, 2015
- Writ of Habeas Data. It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.Section 1 of the Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, January 22, 2008
How can you ensure that your legal documents are effective?
Legal documents vary in type, purpose, and form. Each of them may be covered with corresponding rules or law which prescribe as to how it is formed, what are its contents, how can it may be filed, or which purpose it may be best served. As such, to ensure the effectivity of your legal documents, one must properly consult the rules, laws, and jurisprudence and make sure that all of the guidelines are met. Failure to meet such guidelines will merit to nullification or invalidity of your legal document, resulting to its non-effectivity.
Legal documents which at the onset fails to serve its purpose is deemed to be non-sense. Multiple causes were dismissed due to mere technicality and a legal professional must know that abiding by the rules will ensure effectivity on his own legal documents and the efforts poured into its creation will be for naught.
How to stay organized with your legal documents?
There are multiple ways to organize legal documents and its application varies depending on the purpose.
For legal documents pertaining to a Court Cases, the first course of action in order to be organized is to know the specific case of such legal document, sort them according to their specific case is a must, this will help with easy annexation. The next step shall be organizing them in chronological order, the most recent one being at top or front. This will be efficient to easily determine the status of a case.
For other legal documents not directly specified for a court case, it may be organized according to its purpose or kind. Organizing them in such way will result to easy reference shall a new document of same kind be needed.
Proper labeling and placing them in neat folders and segregation is also essential. An organized stockpile of legal documents produces higher yield in efficiency.
What are legal forms?
Legal forms which usually includes (1) common forms; (2) business forms; and (3) judicial forms, are those required by law as a document or other special form, some of which are cited in Article 1358 of the New Civil Code for instances required to appear in public document, donation of an immovable property under Art. 749, Civil Code, and pledge under Art. 2096, Civil Code, respectively.
To gain further understanding of different kinds of legal forms, we have run through below some examples. The common forms which are usually being utilized of comprises of:
1] Acknowledgment – 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
2] Jurat – 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
4] Prayer – this is a part of the pleading which states the relief or reliefs prayed for by the parties such as damages or other remedies which is not a part of cause of action.
5] Certificate of non-forum shopping – a certification under oath by the plaintiff or principal party in the complaint or other initiatory pleading asserting a claim for relief or in a sworn certification annexed thereto and simultaneously filed therewith:Supra.
(i) 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 therein;Supra.
(iii) 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.Supra.
6] Verification – 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
The second is business forms. These are 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. Cited below are the examples for such:
- Contract – 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. (4 Sanchez Roman 146)
- Deed – 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
- A special power of attorney is a very limited power of attorney which authorizes another person to do things on your behalf.
Lastly, judicial forms pertain to different kinds of pleadings, applications, petitions, affidavits, motions and the like. Affidavits is an ex parte statement in writing 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 knowledgeKhan, Jr., 2007 while a motion is an application for relief other than by a pleading.Supra. Sec. 1, Rule 15
What is the importance of studying legal forms?
It is important to study legal forms or instruments because of its complexity in nature. We must know what and how we can avail such legal forms to avoid any misuse or misinterpretation of the forms.
One of which is an affidavit, which is a formal written statements of facts voluntarily made by an affiant under an oath or a public official such as the notary republic or any person authorized to do so. It is used to prove the truthfulness of a statement before the courts.
This is to certify that any information within that document is true to the best of your knowledge and can make use for any legal purposes. Such information is but not limited to providing consent to a minor for travel, legitimization of child, verifying indigency, and to authenticate any kinds of loss.
One of the importance also is to know the distinction between a jurat and an acknowledgement. According to the case of Tigno v. Honorable Court of Appeals, a jurat is a distinct creature from an acknowledgment.
An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed; while a jurat is that part of an affidavit where the officer certifies that the same was sworn before him.
Also, when in signing any legal forms, it is important to know that it is done voluntarily out of free will and if acted by a representative he is authorized to sign in that capacity before a notary public (Rule II Sec. 1 C of 2004 Rules on Notarial Practice).
As a citizen of the Philippines, it is very important to know our rights as well as to know how our laws protect such rights. Any information or statement we swore and took oath before any notarized public or any person authorized is to be protected under our laws.
What are the benefits of studying legal forms?
The benefits of studying legal forms are as follows;
- To equip an individual for the proper usage of legal forms. This is to prepare him the legal form or instrumentality required for any legal transactions and purposes, may it be for personal and professional uses.
- To provide convenience in any legal transaction.
- To know how our laws provide protection and safe guards to our rights.
- To know the procedural steps and guidelines in creating legal forms; and
- To promote and protect the public interest.
How do you study legal forms? And how is it different from legal documents?
Studying legal forms can the same be as painful as studying the law itself. Aspiring lawyers, or even those who were new lawyers, need to familiarize themselves with the different legal documents and forms because most of the time, we will file legal documents. The very first thing the lawyer must know is that they are different.
A legal document is the type of document necessary in a case, such as a pleading, affidavit, motion, manifestation, civil action, criminal action, etc. Legal forms, on the other hand, are the way how they should be created.
It is like a template for the new lawyers that they can use in drafting the legal document. In studying legal forms, what we should remember is the distinct use of each form. One should be aware of what is a “Jurat” compared to an “Acknowledgement.”
In the case of Tigno vs. Spouses Aquino,Tigno vs. Spouses Aquino, G.R. No. 129416, November 25, 2004 the Court noticed a defect in the notarized deed of sale. The deed of sale was in Jurat form instead of Acknowledgement. The Court added that under Section 127 of the Land Registration Act, which has been replicated in Section 112 of Presidential Decree No. 1529, the Deed of Sale should have been acknowledged before a notary public.Ibid.
In Gamido vs New Bilibid Prisoners Officials,Gamido vs. New Bilibid Personnel Officials, G.R. No. 114829, March 1, 1995 the Court stated that the counsel of the petitioner, Atty. Dela Rea, as a seasoned notary public, should have known the difference between the Jurat and an Acknowledgement. The Court also mentioned that:
“The claim or belief of Atty. dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in a jurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with the public interest.”Ibid.
We can see that the Courts do not take it easy when Lawyers were unaware of the forms. The legal maxim of “ignorantia legis neminem excusat” shall apply.
Legal documents are part of the practice of law, you can even say that it is the bloodline of it. Legal documents form part in the supply of information in every corner of the practice of law. A well-prepared document shows the quality of a legal professional’s attention to details.
These documents cannot be set aside because a mere flaw in its technicality may merit to the dismissal of the case. Therefore, as a legal professional, one must be reminded that legal documents are vital part of the profession and the creation of one must conform to the prescribed rules.
Legal papers are tied to some of the most critical decisions you will make as an individual or as a business. As a result, it is critical that you understand what these legal documents are, who can draft them, and what to do with them once you have signed and received them. If this topic is unfamiliar to you, prepare for some intriguing facts about legal papers that will help you understand the legal world.