Formal/Solemn Contracts, Civil Code

1. Concept

In a solemn contract, compliance with certain formalities prescribed by law, such as in a donation of real property, is essential in order to make the act valid, the prescribed form being thereby an essential element thereof. (Asuncion v. CA, En Banc, G.R. No. 109125, December 2, 1994, Per Vitug, J.)

Unlike ordinary contracts, which are perfected by the concurrence of the requisites of consent, object and cause, solemn contracts like donations of immovable property are valid only when they comply with legal formalities. Absent the solemnity requirements for validity, the mere intention of the parties and concurrence to the agreement will not give rise to a contract. In Abellana v. Sps, Ponce, we ruled that an oral donation of a real property is void and an action to declare its inexistence does not prescribe. Also, in Sumipat v. Banga, the donation was patently void because the donees’ acceptance is not manifested either in the deed itself or in a separate document. (Kinatac-An v. Patenia-Decena, G.R. No. 238325, June 15, 2020, Per Lopez, J.)

Thus, donation of real property, which is a solemn contract, is void without the formalities specified in [Article 749, Civil Code]. (Heirs of Jose Mariano v. City of Naga, G.R. No. 197743, March 12, 2018, Per Tijam, J.)

Abellana v. Sps. Ponce, G.R. No. 160488, September 3, 2004, Per Ynares-Santiago, J.:

• [A]bsent the solemnity requirements for validity, the mere intention of the parties does not give rise to a contract. The oral donation in the case at bar is therefore legally inexistent and an action for the declaration of the inexistence of a contract does not prescribe.⁴¹ Hence, Felomina can still recover title from Lucila.

Heirs of Jose Mariano v. City of Naga, G.R. No. 197743, March 12, 2018, Per Tijam, J.:

• Article 749 of the Civil Code requires that donation of real property must be made in a public instrument to be valid.

• The purported Deed of Donation submitted by the City cannot be considered a public document. While it contains an Acknowledgment before a notary public, the same is manifestly defective as it was made neither by the alleged donors (Macario and Gimenez) and their respective spouses, or by the donee (the City, through Mayor Imperial), but only by Eusebio M. Lopez, Faustino Dolor, Soledad Lirio Dolor and Lopez, Jr., as the Subdivision’s President, Vice President, Secretary and General Manager, respectively.

• Said Deed also shows that Mayor Imperial affixed his signature thereon on August 21, 1954, or four days after it was notarized, thus he could not have acknowledged the same before the notary public on August 16, 1954. Verily, the notary public could not have certified to knowing the parties to the donation, or to their execution of the instrument, or to the voluntariness of their act. This glaring defect is fatal to the validity of the alleged donation. It is settled that a defective notarization will strip the document of its public character and reduce it to a private instrument.

• Not being a public document, the purported Deed of Donation is void. A void or inexistent contract has no force and effect from the very beginning, as if it had never been entered into. 62 It is equivalent to nothing and is absolutely wanting in civil effects. It cannot be validated either by ratification or prescription…

Kinatac-An v. Patenia-Decena, G.R. No. 238325, June 15, 2020, Per Lopez, J.:

• In Dept. of Education Culture & Sports v. Del Rosario, we stated that a deed of donation acknowledged before a notary public is a public document. The notary public shall certify that he knows the person acknowledging the instrument and that such person is the same person who executed the instrument, acknowledging that the instrument is his free act and deed. On the other hand, it is settled that a defective notarization will strip the document of its public character and reduce it to a private instrument. Thus, a defective notarization renders the donation of an immovable property invalid since the requirement that such contract must appear in a public instrument is absent. In this case, the petitioners argued that the donation is void because the notary public tailed to require the parties therein to sign the notarial register. However, we note that the prevailing law at the time of notarization was the Revised Administrative Code which mandate a notary-public to record in his notarial register the necessary information regarding the instrument acknowledged before him.

• There is nothing in the law that obligates the parties to a notarized document to sign the notarial register. This requirement was subsequently included only in Section 3, Rule VI of the 2004 Rules on Notarial Practice, thus:

SECTION 3. Signatures and Thumbmarks. — At the time of notarization, the notary’s notarial register shall be signed or a thumb or other mark affixed by each:

(a) principal;

(b) credible witness swearing or affirming to the identity of a principal; and

(c) witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign.

• As explained in Miranda, Jr. v. Alvarez, Sr. and Gaddi v. Atty. Velasco, the 2004 Rules on Notarial Practice provides that a notary public should not notarize a document unless the signatory to the document is in the notary’s presence personally at the time of the notarization, and personally known to the notary public or otherwise identified through competent evidence of identity. At the time of notarization, “the signatory shall sign or affix with a thumb or mark the notary public’s notarial register” The purpose of these requirements is to enable the notary public to verify the genuineness of the signature and to ascertain that the document is the signatory’s free act and deed. If the signatory is not acting of his or her own free will, a notary public is mandated to refuse to perform a notarial act.

• The present deed of donation, however, was executed and acknowledged before the notary public on January 18, 2002, when there is no rule yet that requires the parties to sign the notarial register.

• Indeed, the new rules cannot be given retroactive effect if they would work injustice or impair vested rights.

a. Essential Requisites

Essential requisites of formal/solemn real contracts:

1) Consent

2) Object

3) Cause

4) Formality/solemnity

4) Delivery

1) Consent

Consent, under Article 1319 of the Civil Code, is manifested by the meeting of the offer and acceptance upon the thing which are to constitute a contract. To produce a contract, the offer must be certain and the acceptance absolute. (Rockland Construction Company, Inc. v. Mid-Pasig Land Development Corporation, G.R. No. 164587, 04 February 2008, Per Quisumbing, J.)

2) Object

In Philippine law, the “Object” (or Object Certain) is the second of the three essential requisites of a contract, alongside Consent and Cause. It is the subject matter of the agreement—the thing, right, or service that the debtor is bound to deliver or perform. (Google Gemini 3 [2025], reviewed by Legal / J. Del Puerto, Accessed 28 December 2025)

Related:

3) Cause

“Cause” is “the essential reason which moves the contracting parties to enter into it.” … In other words, the cause is the immediate, direct and proximate reason which justifies the creation of an obligation through the will of the contracting parties. (Basic Books [Phils.], Inc. v. Lopez, En Banc, G.R. No. L-20753, 28 February 1966)

Related:

4) Formality/solemnity

“Formality or solemnity” – refers to a requirement that a contract has to be in some form (and not verbal), such as in writing or in a public instrument.

b. Examples

Examples of formal/solemn contracts:

1) Donations of Real Property (Immovable)

2) Donations of Personal Property (Movable) over ₱5,000

3) Stipulation to Pay Interest

4) Contract of Antichresis

5) Contract of Partnership (with Immovable Property)

6) Authority of an Agent to Sell Land

7) Chattel Mortgage

1) Donations of Real Property (Immovable)

Article 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. (633)

For a donation of land or buildings to be valid, it must be made in a public instrument (notarized).

• Requirement: Both the donation and the acceptance must appear in a public document.
• Legal Basis: Article 749, Civil Code. (Google Gemini 3 [2025], reviewed by Legal / J. Del Puerto, Accessed 28 December 2025)
•  

2) Donations of Personal Property (Movable) over ₱5,000

Article 748. The donation of a movable may be made orally or in writing.

An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated.

If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing. Otherwise, the donation shall be void. (632a)

If the value of the movable property exceeds ₱5,000, the donation and the acceptance must be in writing.

• Requirement: Otherwise, the donation is void. (If ₱5,000 or less, oral delivery is sufficient).
• Legal Basis: Article 748, Civil Code. (Google Gemini 3 [2025] as reviewed, supra.)

3) Stipulation to Pay Interest

Article 1956. No interest shall be due unless it has been expressly stipulated in writing. 

An agreement to pay interest for the use of money must be expressly stipulated in writing.

• Requirement: If the agreement is merely oral, the debtor is not legally bound to pay interest, only the principal.
• Legal Basis: Article 1956, Civil Code. (Google Gemini 3 [2025] as reviewed, supra.)

4) Contract of Antichresis

Article 2134. The amount of the principal and of the interest shall be specified in writing; otherwise, the contract of antichresis shall be void. (n)

A contract where the creditor acquires the right to receive the fruits of an immovable property of his debtor, with the obligation to apply them to the payment of interest and principal.

• Requirement: The amount of the principal and the interest must be specified in writing; otherwise, the contract is void.
• Legal Basis: Article 2134, Civil Code. (Google Gemini 3 [2025] as reviewed, supra.)

5) Contract of Partnership (with Immovable Property)

Article 1771. A partnership may be constituted in any form, except where immovable property or real rights are contributed thereto, in which case a public instrument shall be necessary. (1667a)

Article 1773. A contract of partnership is void, whenever immovable property is contributed thereto, if an inventory of said property is not made, signed by the parties, and attached to the public instrument. (1668a)

Whenever immovable property (land/buildings) or real rights are contributed to a partnership.

• Requirement: There must be a public instrument to which an inventory of the property is attached, signed by the parties.
• Legal Basis: Articles 1771 and 1773, Civil Code. (Google Gemini 3 [2025] as reviewed, supra.)

6) Authority of an Agent to Sell Land

Article 1874. When a sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void. (n)

When a sale of a piece of land or any interest therein is made through an agent.

• Requirement: The authority of the agent (Power of Attorney) must be in writing. If not, the sale is void even if the agent and buyer agreed.
• Legal Basis: Article 1874, Civil Code. (Google Gemini 3 [2025] as reviewed, supra.)

7) Chattel Mortgage

Article 2140. By a chattel mortgage, personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation. If the movable, instead of being recorded, is delivered to the creditor or a third person, the contract is a pledge and not a chattel mortgage. (n)

A contract where personal property is recorded in the Chattel Mortgage Register as security for an obligation.

• Requirement: It must be registered in the Chattel Mortgage Register to be valid as a chattel mortgage (though it may still bind the parties as a promise to mortgage).
• Legal Basis: Article 2140, Civil Code. (Google Gemini 3 [2025] as reviewed, supra.)

2. Distinguished

a. Formal/solemn contracts vs. Consensual contracts

Contract Type	Moment of Perfection	Legal Consequence
Consensual (e.g., Sale)	Upon meeting of the minds (consent).	You can sue for “specific performance” if the other party refuses to deliver.
Formal/ solemn (e.g., [Loan Interest])	Upon meeting of minds (consent) + execution of formality.	[A loan interest is required to be in writing under the law.]

(Google Gemini 3 [2025] as reviewed, supra.)

b. Formal/solemn contracts vs. Formal/solemn real contracts

Contract Type	Moment of Perfection	Legal Consequence
Formal/ solemn (e.g., [Loan Interest])	Upon meeting of minds (consent) + execution of formality.	[A loan interest is required to be in writing under the law.]
Formal/ solemn real conrtacts (e.g., Donation of movable exceeding Php5,000.00)	Upon meeting of minds (consent) + formality + delivery of the thing	Donation of a movable worth more than Php5,0000.00 is required to be in writing and the thing to be delivered.

(Google Gemini 3 [2025] as reviewed, supra.)

c. Formal/solemn contracts vs. Real contracts

Contract Type	Moment of Perfection	Legal Consequence
Real (e.g., Deposit)	Upon meeting of minds (consent) + delivery of the thing.	[An contract of deposit is perfected only if the thing is delivered.]
Formal/ solemn (e.g., [Loan Interest])	Upon meeting of minds (consent) + execution of formality.	[A loan interest is required to be in writing under the law.]

(Google Gemini 3 [2025] as reviewed, supra.)