Affidavit Definitions & Legal Implications PDF

DEFINITIONS OF AFFIDAVIT An AFFIDAVIT -- is a written statement or declaration of facts which is voluntarily executed and confirmed by the affiant (person making it) and subscribed before a Notary Public or an officer authorized to administer oath. The essential parts of an affidavit are: \(a) Ve...

DEFINITIONS OF AFFIDAVIT An AFFIDAVIT -- is a written statement or declaration of facts which is voluntarily executed and confirmed by the affiant (person making it) and subscribed before a Notary Public or an officer authorized to administer oath. The essential parts of an affidavit are: \(a) Venue or place where it is made \(b) Name, status, citizenship, and address of the affiant; \(c) A statement that the affiant had been duly sworn to; \(d) The matters or facts that the affiant declared and sworn to; \(e) Signature of the affiant \(e) Jurat (f ) Signature and seal of the Notary Public, and other required information. GENERAL ELEMENTS OF AFFIDAVIT Three essential elements must be satisfied to constitute affidavit. They are: 1\. A written oath representing the facts as sworn to by the affiant; 2\. The signature of the affiant; and 3\. The attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant in the presence of the officer. AN AFFIVAVIT IS NOT A "LAWFUL AFFIDAVIT" IF: 1.The affidavit is signed outside the presence of an officer, or 2\. No oath is administered An affidavit must state facts and at the same time, it should affirmatively demonstrate how the affiant obtained personal knowledge of those facts. If the facts stated in the affidavit are untrue and outside the personal knowledge of the affiant, the affidavit will become legally insufficient. SIGNATURE An Affidavit must be signed by the person preparing and attesting to the contents of the affidavit. A signature is generally valid if made manually or by a device or machine. It can also be made by using a trade or an assumed name. Thanks to the advancement of technology, signatures can be made electronically. By signing the affidavit, the creator confirms that the facts given in the affidavit are true to the best of the author's knowledge. JURAT Jurat - is that part of an affidavit in which the notary certifies that before him or her, the document was subscribed and sworn to by the executor; while ACKNOWLEDGMENT 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. JURAT AND ACKNOWLEDGMENT JURAT is an act in which an individual in a single transaction : (a) appears in person before the notary public and presents an instrument or document; \(b) Is personally known to the notary public or identified by the notary public through competent evidence of identity; \(c) Signs the instrument or document in the presence of the notary public; and \(d) Takes an oath or affirmation before the notary public as to such instrument or document. It is that end part of the affidavit, oath or affirmation, in which the notary public certified that the instrument is sworn to before him, thus making the notarial certification essential. ACKNOWLEDGMENT ACKNOWLEDGMENT is an act in which an individual on a single occasion; \(a) appears in person before the notary public and presents an integrally complete instrument or document; \(b) is attested to be personally known to the Notary Public or identified by the Notary Public through competent evidence of identity. \(c) represents to the Notary Public that the signature on the instrument was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and if he was in particular representative capacity, that he has the authority to sign in that capacity. It is used in documents or instruments where there is disposition or transfer or conveyance of title to property (real or personal) or any interest therein, including contract to sell, pacto de retro sale, donation; or any instrument where a lien is constituted on real or personal property ; lease or rental of property. It is also used in contracts of agency. i.e. Special and General Powers of Attorney. Under the 2004 Rules on Notarial Practice, the affiant or the parties to the instrument must present competent evidence of identify if they are not personally known to the notary public. The signature and notarial seal of the Notary Public appear right below the ACKNOWLEDGMENT or JURAT. After the signature and seal of the notary public, the following information shall appear: a\) Complete name of the Notary public b\) Roll of Attorney c\) Commission Number and Date of Expiration d\) IBP Official Receipt Number, date and place of issue e\) Professional Tax Receipt Number; date and place of issue f\) Mandatory Continuing Legal Education (MCLE) Compliance or Exemption Number; date of issue and validity. g\) Office address, telephone number, fax number and email address The information on the entry in the Notarial Register (document number, page number, Book Number and year when the document was notarized) are written at the lower left portion below the information stated above. Signature portion of the Notary Public (Signature and Seal of the Notary Public) NOTARY PUBLIC A.M. No/Comm. No.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date and Place Issued Commission Expires on Dec 31, \_\_\_\_\_ Roll of Attorney Number IBP No. date and pace issued PTR No. date and place issued MCLE Comp/Exemp No. Date Issued and Validity Office Address; Telephone No. Fax No. \_\_\_\_\_\_\_\_: e-mail address FORMS OF JURAT The JURAT of an affidavit, oath or affirmation depends on whether the affiant is personally known or not to the Notary public; or whether the affiant is blind, illiterate or physically impaired to sign the instrument or document. If the affiant is personally known to the notary public, there is no need for the presentation of competent evidence of identity. The notary public's attestation that the affiant is personally known to him is sufficient. However, if the affiant is not personally known to the notary public, he must present a competent evidence of identity. In case the affiant is illiterate, blind or physically impaired to sign, there are additional requirements. When the affiant is illiterate, blind, or physically impaired to sign, he affixes his thumbmark (thumb signature) on the document in the presence of credible witness or witnesses and the notary public. JURAT Form No. 1 -- Affiant is personally known to the notary public. SUBSCRIBED AND SWORN TO before me in \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, this \_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_ by the affiant who is personally known to the undersigned Notary Public, who is the same person who personally signed before me the foregoing\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ and acknowledges and attest that the contents thereof are true and correct; and that he voluntarily executed the same. (Signature and Seal of the Notary Public) JURAT form No. 2 - Affiant is stranger to notary public; with valid evidence of identity. SUBSCRIBED AND SWORN TO before me in \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, this \_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_ by the above-named affiant, who has satisfactorily proven to me his identity through his (ID, number and expiry date) to be the same person who presented and personally signed before me this (state the name of document) and attested that the contents thereof are true and correct; and that he voluntarily executed the same. (Signature and Seal of the Notary Public) JURAT form No. 3 -- Affiant is personally known to the notary public but blind, illiterate or physically impaired to affix his signature to the document/instrument; but with credible witnesses who are not privy to the affidavit. THUMBMARK (Name of Affiant) Affiant (name of affiant) affixed his Thumbmark in the presence of the following witnesses: (state name and address of the two witnesses) 1.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 2.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ SUBSCRIBED AND SWORN TO before me in \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, this \_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_ by (name of affiant), personally known to me to be the same person who personally affixed his Thumbmark in the foregoing affidavit before me and in the presence of the two (2) witnesses whose signatures appear below his thumb signature, who are not privy to this affidavit, and acknowledged before me that he executed the same. The undersigned further certify that the contents of the affidavits was explained by me in (English or Filipino), a Language known and understood by the affiant, he being (state whether blind, illiterate or physically impaired to sign) and appears to have understood the contents thereof. (Signature and Seal of the Notary Public) JURAT Form No. 4 - Affiant is not personally known to the notary public but blind, illiterate or physically impaired to affix his signature to the document/instrument, with competent evidence of identity and with two (21) credible witnesses who are not privy to the affidavit. THUMBMARK (Name of Affiant) Affiant (name of affiant) affixed his Thumbmark in the presence of the following witnesses: (state name and address of the two witnesses) 1.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 2.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ SUBSCRIBED AND SWORN TO before me in \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, this \_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_ by (name of affiant), who has satisfactorily proven to me his identity through his (ID name and number and expiry date) to be the same person who personally affixed his Thumbmark in the foregoing affidavit before me and in the presence of two (2) witnesses whose signatures appear below his thumb signature, and who acknowledged before me that he executed the same voluntarily. The undersigned further certify that the contents of the said affidavits was explained by me in (English or Filipino), a Language known and understood by the affiant, he being (state whether blind, illiterate or physically impaired to sign) and appears to have understood the contents thereof. (Signature and Seal of the Notary Public) JURAT form No. 5 -- Affiant is stranger to notary public without competent evidence of identity; but with at least two credible witnesses who personally know the affiant, but are not personally known to the notary public and not privy to the affidavit; SUBSCRIBED AND SWORN TO before me this \_\_\_\_\_\_\_\_\_\_, this \_\_\_\_\_ day of \_\_\_\_\_\_\_\_ by the above-named affiant, who has satisfactorily proven to me his identity through the following witnesses; Name of witnesses ID Name and No. Expiry Date both of whom personally known the affiant, that he is the same person who personally signed before me the foregoing affidavit and acknowledged that said affiant executed the same freely and voluntarily. (Signature and Seal of the Notary Public) JURAT FORM No.6 -- Affiant is stranger to notary public and without valid evidence of identity; but with credible witness who personally knows the affiant and said witness is personally known to the notary public and not privy to the affidavit. SUBSCRIBED AND SWORN TO before me in \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, this \_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_ by the above-named affiant, who has satisfactorily proven to me his identity through (name and address of witness) who is personally known to me and who personally knows the affiant that he is the same person who personally signed before me the foregoing affidavit and acknowledged before me that he has read and understood the contents thereof and that he executed the same freely and voluntarily. (Signature and Seal of the Notary Public) EFFECT OF THE OMISSION OF A JURAT In instances where a sworn statement is not strictly required by law, a statement in writing in form of an affidavit is admissible even without a jurat. However, in some jurisdictions an instrument in writing has no validity without a jurat. There is some support for the conclusion that the omission of a jurat is not fatal as long as the instrument itself validates the content, or the external evidence confirms that the instrument was sworn to before an authority. AFFIDAVIT TAKEN IN ANOTHER STATE Generally, affidavit taken in another state should be signed and sealed by the author under oath and should be accompanied by a certificate authenticating the notary's authority to administer oath in that state. However, some jurisdictions allow affidavit signed before a notary in another state without an accompanying certificate authenticating the authority of the notary to administer oath. If there is no statutory provision defining the parameter to authenticate a foreign notary, then the notary's official seal is sufficient to authenticate the instrument. AFFIDAVITS AND ITS LEGAL IMPLICATION An Affidavit is an official written statement setting out the facts of a case and it is considered as the proof of the case. It is the main method to present the facts of the case to court. It must be promised, or declared, usually before a Justice of the Peace, Commissioner of Oaths or Solicitor, as a true record. Affidavits may also be promised by a third person in support of a case. The court has a model form to use and there is limited opportunity to give a personal account of your evidence in court. More evidence is provided by affidavit. This allows a case to run more quickly and efficiently as all parties know what evidence is before the Court. CONSEQUENCES OF FALSE AFFIDAVIT The crime of Perjury is committed by any person who shall knowingly make untruthful statements or make an affidavit, upon any material matter and required by law. It is punishable by imprisonment of up to 2 years and four months. Art. 183. False testimony in other cases and perjury in solemn affirmation. -- The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly make untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. x x x"