What does the phrase "and who did/did not take an oath" mean, and what do I do with it?

For only one year did the phrase "who did/did not take an oath" appear in Florida Statutes, and yet it became such a popular phrase that it is now standard on many pre-printed forms. It is important that you know how to deal with this wording in the appropriate manner to avoid contradicting yourself.

If the pre-printed certificate is an acknowledgment, you should first be sure that the document doesn't require an oath. Look for the words "sworn", "swear", or "affirm" in the document. Many times, if the document is an affidavit, it will open with the wording "Before me personally appeared _________, who being duly sworn deposes and says:". In this instance, the document requires a jurat rather than an acknowledgment, and you should therefore strike out the certificate and replace it with a jurat. If the document doesn't require an oath, you may use the pre-printed acknowledgment certificate. In this case, if the phrase "who did/did not take an oath" appears, you may strike out the entire phrase, or you may strike out the word "did" and underline or circle "did not", so it reads "who did/did not take an oath". You should not simply leave the phrase as is; you must either select an option or strike it completely.

When taking an acknowledgment, an oath is not necessary. An acknowledgment is only an indication by the signer that the signature on the document is their own, and that they executed the document voluntarily, in their authorized capacity, for the purposes therein expressed. This declaration is not sworn to by the signer; it is simply declared or indicated.

Archie v. State, 660 So.2d 348 (Fla. 1st DCA 1995), discusses "acknowledgments under oath" in its dissenting opinion. The dissenting judge in that case, in reference to an acknowledgment certificate containing the phrase "and who did take an oath", stated:

"An 'acknowledgment', even under oath, is nothing more than a confirmation by [the signer] that the signature is genuine. It is not equivalent to swearing under oath that the facts alleged are true and correct."

Thus, an acknowledgment certificate containing the phrase "who did take an oath" requires the signer of the document to swear that the signature is genuine. Administering such an oath does not make the acknowledgment any more or any less valid; it is, in all reality, completely unnecessary. In addition, you should specifically note that adding the phrase "who did take an oath" to an acknowledgment does not make the certificate a jurat, and it is therefore unacceptable for use on an affidavit or other document requiring an oath to be administered.

If the "who did/did not take an oath" language is printed in a jurat, you must always indicate that the signer did take an oath. If you state that the document was "sworn to", but that an oath was not taken, you are contradicting yourself.

Notary 101: What is the difference between a jurat/oath and an acknowledgment?

The most important thing a notary must know is the difference between an oath and an acknowledgment. Each of these duties are described in detail in previous articles, but a simple explanation is provided in Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5th DCA 1989):

Confusion often arises between an affidavit and an acknowledgment. Both memorialize acts done before a notary. But, in an affidavit [jurat] [...], the person swearing before the notary must under oath attest that the facts set forth in the document are true. In an acknowledgment, the person merely declares that he executed and signed the document.

Unique Jurats

As discussed in my previous post about administering oaths, a jurat is a certificate given under the hand and seal of the notary public where they certify that the signer of a certain document took an oath that the document's contents are correct and signed the document in the notary's presence. Most jurats a notary comes across will be fairly similar to the one provided in Florida Statutes, i.e.:

STATE OF FLORIDA
COUNTY OF ________________

Sworn to (or affirmed) and subscribed before me this _____ day of ___________, 20__, by __________________________, who [ ] is personally known to me or [ ] has produced ____________________________ as identification.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

If the jurat does not contain all of the above information, such as the venue or type of identification, the Florida notary must, of course, add this information to the certificate, either by printing or typing the additional information onto the pre-printed certificate, or by making a new certificate.

However, although the above form of jurat is certainly the most common, it does not necessarily preclude the use of other forms, provided that the form used contains all of the required information. Another acceptable jurat form would be:

State of Florida
County of __________________

The above named affiant, _________________________, proved to me on the basis of (type of identification) , personally appeared before me, the undersigned Notary Public, and, being by me duly sworn, did depose and state under oath the the statements contained in the foregoing instrument are true and correct to the best of his knowledge, and he did thereupon subscribe his name to the foregoing instrument in my presence, this ______ day of ______________________, 20_____.

_______________________________
Name of Notary Public: ____________________
Notary Public - State of Florida
My Commission Expires:
_______________________________

Although this form may throw you off, it does contain all of the required elements of a jurat under Florida law and is therefore perfectly acceptable.

Another thing to keep in mind is that Florida law distinguishes "administering oaths" and "taking affidavits" as two separate acts under F.S. 92.50. However, in reality, an affidavit is nothing more than a sworn statement made before an officer authorized to administer oaths. It is not considered Unauthorized practice of law for a notary to draft an affidavit for a client; that is, if a client comes to a notary and states that they wish to make a sworn statement, the notary may write or type the statement onto an affidavit form, and "take the affidavit" by administering an oath and executing a jurat. An affidavit is typically made in the following form:

STATE OF FLORIDA
COUNTY OF _________________

Before me, the undersigned authority, personally appeared (name of affiant), who, being by me duly sworn, deposes and says:

(sworn statements are inserted here)

________________________________
(Signature of affiant)

Sworn to (or affirmed) and subscribed before me this _____ day of ___________, 20__, by __________________________, who [ ] is personally known to me or [ ] has produced ____________________________ as identification.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

You will note that the venue is not required to be immediately above the jurat because it already is stated at the beginning of the affidavit where the notary's certificate begins ("Before me, the undersigned authority...").

Since the taking of affidavits is an authorized duty of a notary public considered separate from general administration of oaths, a notary could also make a sworn statement into an affidavit (at the request of the client) by using the following certificate:

STATE OF FLORIDA
COUNTY OF __________________

The foregoing affidavit was taken by me, the undersigned officer, by virtue of the authority in me vested, the same having been this day sworn to and subscribed in my presence by the within-named _____(name of affiant)______, who [ ] is personally known to me or [ ] has produced _________________ as identification.

Given under my hand and official seal, this _____ day of _______________, 20___.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

Oath vs. Affirmation

Although an oath and affirmation are equivalent under Florida law (F.S. 92.52), there are subtle differences between the two. The first and most obvious difference is the way they are administered by the notary. When administering an oath, the common language is for the notary to ask the declarant, "Do you swear that the contents of this document are true and correct?". However, if a declarant wishes to affirm rather than swear, either for religious or other personal reasons, the notary would ask, "Do you declare and affirm under the penalties of perjury that the contents of this document are true and correct?".

The "under penalties of perjury" language is typically not said when administering a standard oath, because it is already implied that false swearing is perjury. The declarant's requesting an affirmation instead of an oath does not remove the declarant's assumption of the obligations of an oath, and to make this fact clear to the declarant, notaries will typically ask the declarant to affirm under penalties of perjury.

An oath is defined as a promise to a supreme being. Whether or not you include language such as "so help you, God" in your oaths, the purpose of an oath is to appeal to the declarant's conscience, and for religious persons, this is best accomplished by having him or her swear in accordance with their own religious practices. However, some persons will have an objection to taking an oath, either on the grounds of being non-religious or on the grounds that the Bible states that people should not swear at all, but rather to always speak the truth. In these cases, you can administer an affirmation.

An affirmation is not a promise to a supreme being, but is rather a declaration made on the person's own conscience without appealing to the person's religious beliefs.

Most notaries will never come across a person who objects to taking an oath. However, it is still important to know how to address the situation if you come across it, and it is important to know the subtle differences between an oath and an affirmation.

How do I administer an oath without looking like a fool?

It is an unfortunately common practice amongst notaries across the entire nation to execute jurats without administering an oath to the signer. Doing so, however, defeats the entire purpose of the jurat. Most notaries don't administer oaths because they don't know how to do it without looking silly. You do not have to raise your right hand and do not have to make a huge performance out of administering an oath, although you are certainly allowed to do so if you have the guts. However, administering oaths can be done very casually without the document signer raising an eyebrow or giggling.

One of the most important Florida cases for notaries is that of Youngker v. State (215 So. 2d 318), which deals with the proper administration of oaths. Below are some of the most important quotes from the Court's opinion:

"An affidavit is by definition a statement in writing under oath administered by a duly authorized person. An oath may be undertaken by any unequivocal act in the presence of an officer authorized to administer oaths by which the declarant knowingly attests the truth of a statement and assumes the obligation of an oath."

- This quote is important because it establishes that an affidavit is a writing under oath. Therefore, when an affidavit is presented to a notary with a pre-printed acknowledgment, the notary has the authority, and is required to, replace the acknowledgment with a jurat, in accordance with F.S. 117.03 which states that a notary may not take an acknowledgment in lieu of an oath when an oath is required.

"Where an officer authorized to administer oaths identifies his signature on a jurat together with the signature of the person making the statement, this is prima facie evidence that the declarant was in fact sworn."

- This quote further emphasizes that an actual oath must be administered by the notary. A jurat is evidence that the declarant was sworn, therefore the declarant must be sworn for the jurat to be true and correct.

From the testimony of the notary it is conclusively shown that she did not administer a verbal oath either by asking the defendant whether or not he swore to the statements in the waiver of lien [1] or by asking him to sign the waiver of lien if he swore to the statements therein [2]. In the absence of some verbal act by the officer or the defendant, is the mere signing of the waiver of lien by the defendant competent substantial evidence that defendant knowingly attested the truth of the statements in the waiver and assumed the obligations of an oath? We are compelled to the conclusion that the mere signing of the waiver of lien, under the facts and circumstances of this case, is not competent substantial evidence that the defendant knowingly assumed the obligations of an oath. In the first place, the form of the instrument is not that generally employed in drafting affidavits. Nowhere does it say that it constitutes an oath or affidavit of the defendant. Secondly, there was no evidence that the notary or any other person called the defendant's attention to the fact that the jurat on the lower left hand side of the page would be completed for the purpose of constituting the document a sworn statement [3]. For all that appears from the record, the defendant may reasonably have concluded that he was signing a bare assertion as distinguished from a sworn statement. For these reasons, we conclude that the evidence was insufficient to constitute competent substantial evidence that the waiver of lien was an affidavit within the meaning of F.S. 1963, Section 84.351, F.S.A.

- This quote establishes acceptable ways for an oath to be administered:

1. Asking the declarant whether or not he/she swears to the statements in the document. ("Do you swear that the statements in this document are true?")
2. Asking the declarant to sign the document if he/she swears to the statements therein. ("If you swear that the statements in this document are true, please sign.")
3. Calling the declarant's attention to the fact that your notarization of the document would cause it to become a sworn statement. ("Do you understand that by my notarizing this document, you are swearing to the statements therein?")

- This quote also establishes that the mere signing of an affidavit does not make it "sworn to". The administration of the oath must be done by some unequivocal act, either by the notary or by the declarant/affiant/deponent/signer.

Bottom line is, both you and the signer must leave no doubt that the signer is swearing that the contents of the document are true, and any of the above methods are acceptable under Florida law.

The easiest way to administer an oath is to, right before the person signs the document, say very casually, "Do you swear that the contents of this document are true and correct?", to which the signer will answer "Yes" or "I do". This entire procedure can be accomplished in 3 seconds, and there is no need to break a sweat over it. Fellow notaries may snicker at you the first time they see you do it, but in this case it is best to lead by example. Show other notaries that administering oaths does not have to be an embarrassing situation and can be done casually and still in total compliance with the law. As evidenced by the above-referenced case, an affidavit can be dismissed if the notary failed to administer an oath, even if the affidavit on its face appears to have been executed perfectly. By making it a habit with every jurat, there will never be a doubt in your mind that your documents have been properly notarized and will not be questioned.

Can a notarial certificate contain elements of both a jurat and an acknowledgment, such as "Sworn to, subscribed and acknowledged before me..."?

Never, ever, ever! If you see a certificate like this, you should ask the signer or the document preparer which they want - an oath or an acknowledgment - because the law does not authorize notaries to combine both acts in one certificate. If the signer or document preparer doesn't know, or wants you to do both an oath and an acknowledgment, you should strike out the entire certificate and attach two separate certificates - first, a jurat, and second, an acknowledgment.

You should note that an "acknowledgment under oath" is not the equivalent of a jurat. See my article "What does the phrase "and who did/did not take an oath" mean, and what do I do with it?"