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MEANING AND SCOPE OF CREDIT TRANSACTIONS Credit transactions include all transactions involving the purchase or loan of goods, services, or money in the present with a promise to pay or deliver in the future. TWO TYPES OF CREDIT TRANSACTIONS/ CONTRACTS OF SECURITY
1. Secured transactions or contracts of real security – supported by a collateral or an
encumbrance of property
2. Unsecured transactions or contracts of personal security – fulfillment by the debtor is
supported only by a promise to pay or the personal commitment of another EXAMPLES OF CREDIT TRANSACTIONS 1. 2. 3. 4. 5. Bailment contracts Contracts of guaranty and suretyship Mortgage Antichresis Concurrence and preference of credits
MEANING OF SECURITY Security (def). Something given, deposited, or serving as a means to ensure the fulfillment or enforcement of an obligation or of protecting some interest in property. KINDS OF SECURITY
1. Personal Security - when an individual becomes a surety or a guarantor 2. Property or Real Security – when a mortgage, pledge, antichresis, charge, or lien or
other device used to have property held, out of which the person to be made secure can be compensated for loss. BAILMENT Bailment (def). The delivery of property of one person to another in trust for a specific purpose, with a contract, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished or kept until the bailor reclaims it. To be legally enforceable, a bailment must contain all the elements of a valid contract, which are consent, object, and cause or consideration. However, a bailment may also be created by operation of law. PARTIES IN BAILMENT
1. Bailor – the giver; the one who delivers the possession of the thing bailed 2. Bailee – the recipient; the one who receives the possession or custody of the thing delivered
KINDS OF BAILMENT 1. For the sole benefit of the bailor Examples: gratuitous deposit and mandatum (bailment of goods where the bailee gratuitously undertakes to do some act with respect to the property)
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Ex. My tito from the States makes padala a balikbayan box filled with spam through another relative who’s flying to the Philippines on vacation. It only benefits my tito (the bailor). Or, Helen deposits Polsci’s baby chair with the mysterious little guy who doesn’t smile in the bag depository counter outside the lib. In this case, only Helen benefits (based on a true story). 2. For the sole benefit of the bailee Examples: commodatum and gratuitous simple loan or mutuum Ex. Xilca borrows my white blouse because she forgot to bring clothes to change from her Pasay City Jail outfit. Only Xilca is benefited, not me. Or, Xilca borrows P10 from me without interest. 3. For the benefit of both parties Examples: deposit for a compensation, involuntary deposit, pledge, bailments for hire Ex. Ansky pawns her huge diamond earrings at Villarica Pawnshop. The pawnshop gives her P10,000 and a pawn ticket. Both parties benefit – Ansky gets fast cash, while the pawnshop gets to keep the huge diamond earrings to make sure that Ansky pays, and in case she doesn’t they can sell the earrings. 1 and 2 are gratuitous bailments. There is no consideration because they are considered more as a favor by one party to the other. Bailments under number 3 are mutual-benefit bailments, and they usually result from business transactions. BAILMENT FOR HIRE Bailment for hire arises when goods are left with the bailee for some use or service by him always for some compensation. KINDS OF BAILMENT FOR HIRE
1. Hire of things – goods are delivered for the temporary use of the hirer 2. Hire of service – goods are delivered for some work or labor upon it by the bailee 3. Hire for carriage of goods – goods are delivered either to a common carrier or to a private
person for the purpose of being carried from place to place
4. Hire of custody – goods are delivered for storage
I. LOAN GENERAL PROVISIONS
Art. 1933. By the contract of loan, one of the parties delivers to another, either something not consumable so that the latter may use the same for a certain time and return it, in which case the contract is called a commodatum; or money or other consumable thing, upon condition that the same amount of the same kind and quality shall be paid, in which case the contract is simply called a loan or mutuum. Commodatum is essentially gratuitous. Simple loan may be gratuitous or with a stipulation to pay interest. In commodatum the bailor retains the ownership of the thing loaned, while in simple loan, ownership passes to the borrower. Art. 1934. An accepted promise to deliver something by way of commodatum or simple loan is binding upon the parties, but the commodatum or simple loan itself shall not be perfected until the delivery of the object of the contract.
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ESSENTIAL ELEMENTS OF A CONTRACT Consent of the parties Object Cause or Consideration
IN THE CONTEXT OF A LOAN Borrower and Lender Property For the lender: right to demand the return of the thing For the borrower: acquisition of the thing
CHARACTERISTICS OF THE CONTRACT OF LOAN
1. A real contract – the delivery of the thing loaned is necessary for the perfection of the
2. A unilateral contract – once the subject matter has been delivered, it creates obligations on
the part of only one of the parties (the borrower) CAUSE OR CONSIDERATION IN A CONTRACT OF LOAN 1. 2. As to the borrower: the acquisition of the thing As to the lender: the right to demand its return or of its equivalent
KINDS OF LOAN
1. Commodatum – where the lender delivers to the borrower a non-consumable thing so that
the latter may use it for a certain time and return the identical thing
2. Simple loan or mutuum – where the lender delivers to the borrower money or other
consumable thing upon the condition that the latter shall pay the same amount of the same kind and quality. LOANS DISTINGUISHED FROM CREDIT Credit means the ability of an individual to borrow money or things by virtue of the confidence or trust reposed by a lender that he will pay what he may promise within a specified period. Loan means the delivery by one party and the receipt by the other party of a given sum of money or other consumable thing upon an agreement to repay the same amount of the same kind and quality, with or without interest. The concession of a credit necessarily involves the granting of loans up to the limit of the amount fixed in the credit. As opposed to debt, credit is a debt considered from the creditor’s standpoint. It is that which is due to any person.
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This is an accepted promise to make a future loan. so there is no unlawful taking of property belonging to another. if you do not return the thing when it is due. the contract ceases to be a commodatum. It is a consensual contract and is binding upon the parties. in which case.DISTINCTIONS BETWEEN COMMODATUM AND SIMPLE LOAN SUBJECT MATTER OWNERSHIP GRATUITOUS? COMMODATUM Not consumable Retained by the lender Gratuitous SIMPLE LOAN Money or other consumable thing Transferred to the borrower Default rule is that it is gratuitous BUT the parties may stipulate interest. This is because in loan. But is there a contract of loan at this point? No. I will lend you the money. KINDS OF COMMODATUM 1. because loan is a real contract and is perfected only upon delivery of the thing. 1935. ownership of the thing is transferred to the borrower. it becomes onerous Borrower need only pay the same amt of the same kind and quality Personal only Consumption Lender may not demand return of the thing before the lapse of the term agreed upon Suffered by the borrower even if through fortuitous event PAYMENT BY BORROWER KIND OF PROPERTY PURPOSE WHEN LENDER MAY DEMAND Borrower must return the same thing loaned Real or personal Temporary use or possession Lender may demand return of the thing before the expiration of the term in case of urgent need Suffered by the lender (since he is the owner) LOSS OF THE THING In commodatum. The bailee in commodatum acquires the use of the thing loaned but not its fruits. In loan. CHAPTER 1 COMMODATUM Art. you will be liable for estafa because ownership of the property is not transferred to the borrower. FORM OF LOAN There are no formal requisites for the validity of a contract of loan except if there is a stipulation for the payment of interest. 2. Ordinary commodatum Precarium – one whereby the bailor may demand the thing loaned at will Sheryl IID 2002 PAGE 4 . His liability is only a civil liability for the breach of the obligation to pay. if any compensation is to be paid by him who acquires the use. ACCEPTED PROMISE TO MAKE A FUTURE LOAN Borrower goes to Lender and asks if he could borrow P10K at 6% interest per annum. Lender says okay. the borrower who does not pay is not criminally liable for estafa. A stipulation for the payment of interest must be in writing.
) 4. the puppies (fruits) belong to A.NATURE OF COMMODATUM Commodatum in simple terms is hiram – A agrees to lend his guard dog to his friend B for a week for free. It is enough that he has possessory interest in the thing or right to use it which he may assert against the bailee and third persons though not against the rightful owner. or if the nature of the thing forbids it. but this must only be incidental to the use of the thing itself (because if it is the main cause. the borrower is liable for loss through a fortuitous event: a. 5. though consumable goods may also be the subject of commodatum if the purpose is not the consumption of the object (ex. if the thing loaned has been delivered with appraisal of its value unless there is a stipulation exempting the bailee from responsibility in case of a fortuitous event is equivalent to an assumption of risk. the contract may be one of usufruct). 2. It is purely personal in character. B must return the dog to A. The consequences of this are the following: a. OBLIGATIONS OF THE BORROWER 1. 1. If the dog gives birth while it is in the custody of B. The lender need not be the owner of the thing loaned. ii. Display of a bottle of wine). The death of either party extinguishes the contract unless there is a contrary stipulation for the commodatum to subsist until the purpose is accomplished b. But in the following cases. Sheryl IID 2002 PAGE 5 this . The bailee acquires the use of the thing but not its fruits. it is not commodatum but it may be a deposit. 6. if he keeps it longer than the period stipulated or after the accomplishment of the use for which the commodatum has been constituted (delay) c. 3. A lessee may sublet the thing leased). At the end of the week. The purpose of the contract is the temporary use of the thing loaned for a certain time. 2. The subject matter is generally non-consumable real or personal property. It is essentially gratuitous. if he devotes the thing to a purpose different from that for which it was loaned (bad faith) this is a breach of the tenor of the obligation b. 7. However. if there is a stipulation to the contrary. The parties may stipulate that the borrower may use the fruits of the thing. The owner bears the loss. Liability for loss of the thing – The general rule is the borrower is not liable for loss or damage due to a fortuitous event. members of the borrower’s household may make use of the thing loaned except: i. B is entitled to use the dog for this period. (So if the bailee is not entitled to use the thing. (Ex. Liability for ordinary expenses – The borrower should defray the expenses for the use and preservation of the thing loaned. The borrower cannot lend or lease the thing to a third person. unless there is a stipulation to the contrary.
Pending payment of the damages by lender to borrower. Liability of two or more bailees – When there are two or more borrowers to whom a thing is loaned in one contract. arbitrarily. 4. and 21. So for example. if he lends or leases the thing to a third person who is not a member of his household also a breach of the tenor of the obligation.d. At the end of the 10 days. Liability for deterioration of the thing . If there is no stipulation as to the duration of the contract or to the use to which the thing loaned should be devoted If the use of the thing is merely tolerated by the lender BUT. Also. and she cannot keep it as a security for anything that Cayo may owe her. the lender may not demand the thing capriciously. except for a claim for damages suffered because of the flaws of the thing loaned. While the car is in Xilca’s possession. e. because the purpose of commodatum is for the borrower to use the thing. he chose to save his own (ingratitude). being able to save either the thing borrowed or his own thing. Cayo loaned Alvin Ang’s Frisbee to Xilca for 10 days. Obligation to return the thing loaned – The borrower must return the thing as soon as the period stipulated expires or the purpose has been accomplished. Can Xilca refuse to return? No. This is borne by the lender.The borrower is not liable for the ordinary deterioration or wear and tear of the thing that comes as a natural consequence of its use. as a result of which. Reason: Because the lender retains ownership so he should bear the loss from ordinary deterioration.000. if. Sheryl IID 2002 PAGE 6 . Xilca refuses to return the car unless Kim Chong pays her the P3.000. Kim Chong owes Xilca P3. He cannot keep the thing as security for anything that the lender may owe him. a tire explodes. Xilca earlier won a bet with Cayo. or whimsically.000 as an extraordinary expense for the preservation of the thing. Cayo owes her a tuna sandwich. he may demand its return or temporary use if he should have urgent need of the thing. Obligation to respect the duration of the loan – The lender cannot demand the return of the thing until after the expiration of the period or after the accomplishment of the use for which the commodatum was constituted. OBLIGATIONS OF THE LENDER 1. At the end of the 10 days. Xilca cannot refuse to return Alvin Ang’s frisbee to Cayo and hold it hostage until Cayo delivers the sandwich. In this case. Precarium – Precarium is a kind of commodatum where the lender may demand the thing at will. Exception: If the thing loaned has hidden defects and the borrower suffers damages as a result of the hidden defect. Xilca still cannot retain the car as security. 20. there liability is solidary. 3. Precarium exists in the following cases: a. Or. But even if Kim Chong owes Xilca money in connection with the thing that he loaned. since this would give rise to an action on the part of borrower for abuse of right under Articles 19. (see discussion below) 5. Deterioration is a natural result of such use. Xilca has to buy a new tire for P3. the borrower can claim damages against the lender. However. borrower can keep the thing as a security. b. Why? Because Xilca’s obligation as a borrower is to return the thing after the period expires. 2. Xilca borrows Kim Chong’s car for 10 days.
Just keep the thing. b. Obligation to refund extraordinary expenses a. 765 of the Civil Code. because in this case. at least. He should have taken precautions when he opened the hood or he should have gone to a gas station or mechanic to have it fixed. He was. Extraordinary expenses arising from actual use of the thing – Extraordinary expenses arising on the occasion of the actual use of the thing shall be borne by the lender and borrower on a 50-50 basis.3.Requisites: (F-HADD) a. Liability for damages for known hidden flaws . subject to the provisions against abuse of right) 4. Can he claim damages from Lender and can he keep the car as security? No. (HOT TIP) Example: Borrower borrows a 1970 Mitsubishi Lancer from Lender. provided that the borrower informs the lender before incurring the expense. There is a flaw or defect in the thing loaned. and after 10 minutes. ABANDONMENT OF THING BY THE LENDER Can the lender tell Borrower: I don’t want to pay for the extraordinary expenses and damages that I owe you. 5. he should have known that if he opened the radiator. The defect was not really hidden since Borrower was in a position to know of it even if Lender did not inform him. he would not have been scalded. Radiator water scalds his face. Unfortunately. in a position to know that the car just might be prone to overheating since it was old already. and it would. e. The flaw or defect is hidden The lender is aware of the flaw The lender does not advise the borrower of the flaw The borrower suffers damages by reason of the flaw or defect The lender is penalized for his failure to disclose a hidden flaw which causes damage because he is in a position to prevent the damage from happening. he has only himself to blame for the damage caused. the car stalls and overheats. All other expenses are for the account of the borrower. No. Borrower opens the hood and sees lots of steam. Lender forgets to tell borrower that the car has a tendency to overheat after 10 minutes. But since he was negligent. unless the need is so urgent that the lender cannot be notified without danger. and let’s forget about my obligation. be unfair to allow the lender to just abandon the thing instead of paying for the expenses and damages. Extraordinary expenses for the preservation of the thing – The lender should refund the borrower the extraordinary expenses for the preservation of the thing. And when he opened the hood and saw lots of steam. (This applies to ordinary commodatum. 6. c. Sheryl IID 2002 PAGE 7 . the lender may demand the immediate return of the thing from the borrower. This is because the expenses and damages may exceed the value of the thing loaned. b. and he suffers from burns. Right to demand return of thing for acts of ingratitude – If the borrower commits any of the acts enumerated in Art. Buyer should have known. So Borrower drives. Had he been more careful. since in precarium the lender can demand at will. The lender cannot exempt himself from the payment of the expenses or damages by abandoning the thing to the borrower. d. unless there is a contrary stipulation. He opens the radiator cap to put water inside. therefore. very hot water would spray out.
and quality. DISTINCTIONS BETWEEN MUTUUM. the contract is a contract of barter.CHAPTER 2 SIMPLE LOAN OR MUTUUM DEFINITION Simple loan (def). COMMODATUM. or measure. FUNGIBLE AND CONSUMABLE THINGS Fungible things (def). NO CRIMINAL LIABILITY FOR ESTAFA FOR FAILURE TO PAY There is no criminal liability for failure to pay a simple loan because the borrower acquires ownership of the thing. weight. A contract where one of the parties binds himself to give one thing in consideration of the other’s promise to give another thing. If it cannot be replaced with an equivalent thing. then it is non-fungible. Whether a thing is consumable or not depends upon its nature. Those which are usually dealt with by number. Those which may be replaced by a thing of equal quality and quantity. sugar). so that any given unit or portion is treated as the equivalent of any other unit or portion. CONSIDERATION What is the consideration in this kind of contract? The promise of the borrower to pay is the consideration for the obligation of the lender to furnish the loan. Consumable things (def). exchange of property) If one person agrees to transfer the ownership of non-fungible things to another with the obligation on the part of the latter to give things of the same kind. BARTER Barter (def). (in short. The term “return” is not used since the distinguishing character of the simple loan from commodatum is the consumption of the thing. A contract whereby one of the parties delivers to another money or other consumable thing with the understanding that the same amount of the same kind and quality shall be paid. oil. Those which cannot be used without being consumed. AND BARTER MUTUUM Money or other fungible things Return the equivalent May be gratuitous or onerous COMMODATUM Non-fungible things Return the identical thing borrowed Always gratuitous BARTER Non-fungible things Return the equivalent Onerous SUBJECT MATTER OBLIGATION OF THE BORROWER GRATUITOUS? Sheryl IID 2002 PAGE 8 . Rice. A simple loan involves the payment of the equivalent and not the identical thing because the borrower acquires ownership of the thing loaned. Whether a thing is fungible or not depends on the intention of the parties. (ex. quantity.
but an interest rate may still be struck down for being unconscionable. If the object is a fungible thing other than money – Borrower must pay lender another thing of the same kind. is applicable in payments of loans. the legal rate for loans and forbearances of money is 12%. quality.000 from Lender at the peso-dollar exchange rate of P50$1. Even if there are no longer any interest ceilings. FPJ becomes President. 1250. Thus. The interest rate stipulated by the parties. we shouldn’t adjust the value of the currency. this rule is still applicable. If the parties had agreed that payment would be in pesos. the rate becomes P60$1. Stipulation of interest 1. otherwise it is payable in the currency which is legal tender in the Philippines. So unless there’s a drastic economic situation. Ex: In 2000. is applicable. the value of the currency at the time of the establishment of the obligation (not at the time of payment) should be the basis for payment. INTEREST Requisites for Recovery of Interest: 1. or P60. Sheryl IID 2002 PAGE 9 . in writing [3. Borrower borrowed $1.FORM OF PAYMENT 1. so I don’t think this requisite is still included)] There is no Usury Law anymore. and as a result. Borrower should pay at the rate of P60 to a dollar. In case it is impossible to do so. And the interest must be lawful (but since there is no Usury Law anymore. If the object is money – Payment must be made in the currency stipulated. not the legal rate of interest. borrower shall pay the market value of the thing at the time of payment. the reason for requirement is to prevent circumvention of the interest ceilings. payable in 2004. 2. then there is no such thing as unlawful interest. BUT JPSP thinks that this is rarely applied because it would create a bad precedent and would wreak havoc on the economy. The test of an unconscionable interest rate is relative and there is a need to look at the parity/disparity in the status of the parties and in their access to information during the negotiations. It would also shift the loss to the lender. So how do you opt out of it? Stipulate! Put a stipulation that says that if it is impossible to pay a thing of the same kind. Borrower still has to pay $1. Default rule: If the parties do not stipulate an interest rate. According to Art.000. 2.000. In 2004. The obligation should be paid based on the value of the currency at the time of payment. 1250 provides that in case of extraordinary inflation or devaluation. quality. and quantity. the borrower shall pay its value at the time of the perfection of the loan. If the parties had agreed that payment would be in dollars. 2. Art. Why? You cannot apply 1250 and base the amount due on the value of the currency in 2000 because the inflation is not so extraordinary as to warrant the adjustment. which shouldn’t be the case since the loan is primarily for the benefit of the borrower. and quantity. 1955. Why does the law require that the value of the thing be based on its value at the time of the perfection of the loan? There’s a historical explanation: the rule was created at a time when there were still interest ceilings. The payment of interest must be expressly stipulated.
4. Rate in the penalty clause agreed upon by the parties b. On due date. and damages arising from injury to persons and loss of property which do not involve a loan. Borrower fails to pay. Stipulation of interest must be mutually agreed upon by the parties and may not be unilaterally increased by only one of the parties. Borrower only pays a year after. But if the formula says “interest will be based on T-bill rates and other interest-setting policies as the bank may determine. additional interest is equivalent to the legal interest rate (12%) Example: Lender lends P10K at 10% interest with penalty interest of 6%.600 Lender lends P10K at 10% interest. The extra interest is based on the legal rate of interest. When the borrower is liable for interest even without a stipulation: 1. How much should Borrower pay a year later? Borrower should pay P10K + 12% of P10K = 11. There must be a specified formula for arriving at the adjusted interest rate. This would violate consensuality and mutuality of contract (PNB v. Where to base the rate of damages: a. 5. etc. additional interest based on the regular interest rate of the loan c. The penalty interest is 12% since there is no interest on the loan nor a penalty interest stipulated. no interest. If there is no penalty clause. A de-escalation clause is a clause which provides that the rate of interest agreed upon will also be automatically reduced. On due date. If there is no regular interest. How much should he pay? Borrower should pay the principal + interest on the loan + penalty interest = 10K + 10% of 10K + 6% of 10K = 10K + 1K + . the legal rate of interest is 6%. over which neither party has control (ex: interest will be adjusted quarterly at a rate of 3% plus the prevailing 91-day T-bill rate. Borrower fails to pay.” this is not valid.6K = 11.). over which neither party has any discretion. Escalation Clause – A clause which authorizes the automatic increase in interest rate.200. 3. CA). Increases in interest must also be expressly stipulated. But the parties can agree upon a formula for determining the interest rate. with or without security. that interest may be stipulated and demanded. Borrower only pays a year after. Indemnity for damages – The debtor in delay is liable to pay legal interest as indemnity for damages even without a stipulation for the payment of interest. Sheryl IID 2002 PAGE 10 . It is only in contracts of loan. An escalation clause is valid when it is accompanied by a De-Escalation Clause. such as sale.For other sources of obligations. On due date. Lender lends P10K. How much should he pay? Borrower should pay 10K + 10% of 10K (interest on the loan) + 10% of 10K (penalty interest) = 10K + 1K + 1K = 12.000 The penalty interest in this case is 10% since there is no penalty interest stipulated. The additional interest is based on the regular interest of the loan. Borrower fails to pay.
General Rule: Accrued interest shall not earn interest Exceptions: 1.000. What if the borrower pays interest when there is no stipulation providing for it? If the debtor pays unstipulated interest by mistake.000 + 10% of 110. GUARANTY AND SURETYSHIP CHAPTER 1 NATURE AND EXTENT OF GUARANTY Art. By guaranty a person. how much is due? 110. binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to do so. 2212) accrued interest shall be added to the principal and the resulting total amount shall earn interest.000 In compounding interest.000 + 11. If the principal obligation consists in the payment of goods and it is impossible to deliver the goods. since this is a case of solutio indebiti or undue payment. When judicially demanded (Art. Express stipulation – Also called compounding interest where the parties agree that II. how much is due? Principal plus 10% interest = 110.000 = 121. Take note that you should not confuse this with the rule when the principal obligation consists of goods other than money. Sheryl IID 2002 PAGE 11 . he may recover. the 110. At the end of the first year. On the second year. So at the end of the second year. 2047. But if the debtor voluntarily pays interest (either unstipulated or stipulated by not in writing) because of some moral obligation. it should be appraised at its value at the time of payment.000 payable in 2 years at 10% interest compounded per annum. called the guarantor. 2. 2212.000 becomes the new principal amount and it is what will earn the 10% interest. But if interest is payable in kind. Interest accruing from unpaid interest – Interest due shall earn interest from the time it is judicially demanded although the obligation may be silent on this point (Art. he cannot later recover.2. the borrower should pay the value of the thing at the time of the constitution of the obligation. you add the unpaid interest to the principal.000 = 110. A stipulation as to compounding interest must be in writing.) If interest is payable in kind: If interest is payable in kind. The resulting amount is your new principal which will then earn interest again. its value shall be appraised at the current price of the products or goods at the time and place of payment. The obligation to return the interest is a natural obligation. How does compounding interest work? Lender lends P100.
personal: the guaranty is the credit given by the person who guarantees the fulfillment of the principal obligation (guarantor) b. onerous: the guarantor receives valuable consideration for acting as guarantor 4. 3. conventional: by agreement of the parties b. As to origin: a. As to consideration: a. In the broad sense: a. Distinct Person: It requires that the person of the guarantor must be distinct from the person of the principal debtor (you cannot guaranty your own debt). However. the principal debtor should indemnify the guarantor. judicial: required by a court to guarantee the eventual right of one of the parties in a case 3. Characteristics of the Contract of Guaranty (A-SC-U-D) 1. the parties are the guarantor and the creditor. gratuitous: the guarantor does not receive anything for acting as guarantor b. real: the guaranty is property. It gives rise to obligations on the part of the guarantor in relation to the creditor and not vice-versa. the provisions of Section 4. 2. Classification of Guaranty 1. in a real guaranty. Unilateral: a.If a person binds himself solidarily with the principal debtor. Guaranty (def. If the guaranty is movable property: pledge or chatter mortgage 2. Chapter 3.) A contract whereby the guarantor binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to do so. If the guaranty is immovable property: real mortgage or antichresis. Accessory: It is dependent for its existence upon the principal obligation guaranteed by it. In a contract of guaranty. Subsidiary and Conditional: It takes effect only when the principal debtor fails in his obligation. In such case the contract is called a suretyship. but this obligation is only incidental) It may be entered into even without the intervention of the principal debtor. Title 1 of this Book shall be observed. As to the person guaranteed: a. legal: imposed by law c. b. a person may guarantee his own obligation with his own properties. (Although after its fulfillment. 4. single: constituted solely to guarantee or secure performance of the principal obligation Sheryl IID 2002 PAGE 12 .
in effect. it is a contract of suretyship. and absolute. guarantees the obligation of a guarantor 5. Suretyship dispenses with certain legal requirements/conditions precedent for proceeding against a guarantor. He is thus liable to pay the holder of the instrument. The difference is that the lender cannot go after the surety right away. the two are similar in the following ways: 1. a demand or notice of default is not required to fix the surety’s liability. double or sub-guaranty: constituted to secure fulfillment of a prior guaranty. Contractual and Accessory BUT Direct: The contractual obligation of the surety is merely an accessory or collateral to the obligation contracted by the principal. The guarantor is called a surety. Both debtor and surety. Sheryl IID 2002 PAGE 13 . There has to be default on the part of the principal debtor before the surety becomes liable. the surety does not incur liability unless and until the principal debtor is held liable. indefinite or simple: includes not only the principal obligation but also all its accessories. including judicial costs.b. 3. Nature of a Surety’s Undertaking 1. d. 2. If it were mere solidarity among debtors. A surety is bound by a judgment against the principal even though the party was not a party to the proceedings. Suretyship is governed by Articles 1207 to 1222 of the Civil Code on solidary obligations. Liability is limited by the terms of the contract: The extent of a surety’s liability is determined only by the terms of the contract and cannot be extended by implication. What is the difference between passive solidarity (solidarity among debtors) and suretyship? Review of oblicon: According to Tolentino. 2. Liability arises only if principal debtor is held liable: If the principal debtor and the surety are held liable. his liability to the creditor is direct. c. like a surety. drawer. 2047: Suretyship If a person binds himself solidarily with the principal debtor. Generally. a. may require that they be reimbursed. As to scope and extent: a. stands for some other person. b. after payment. Second Paragraph of Art. acceptor. separately or together. subject to reimbursement from the accommodated party. definite: limited to the principal obligation only or to a specific portion thereof b. primary. An accommodation party (one who signs an instrument as maker. their liability to pay the creditor would be solidary. A solidary debtor. the creditor can go after any of the solidary debtors on due date. BUT. or indorser without consideration and only for the purpose of lending his name) is. But. The creditor may sue. the principal debtor and the surety (since they are solidarily bound). a surety.
Example: Tuks accommodates Shak so that he can obtain a loan from the bank. At the bottom of the loan agreement, the following signatures appear: (sgd) Tuks Lino Chris Kapunan (sgd) Shak Sherwin Shakramy
Is Tuks a surety or a solidary debtor? According to JPSP, based on this document above, Tuks is a solidary debtor. Remember the rule? I promise to pay signed by two parties = solidary. To make sure that he’s merely a guarantor or surety, Tuks should sign a separate guaranty agreement. Besides, a guaranty must be express. It is not presumed. e. A surety bond is void where there is no principal debtor.
4. Surety is not entitled to exhaustion: A surety is not entitled to the exhaustion of the
properties of the principal debtor since the surety assumes a solidary liability for the fulfillment of the principal obligation.
5. The undertaking is to the CREDITOR, not to the principal debtor: The debtor cannot
claim that the surety breached its obligation to pay for the principal obligation because there is no obligation as between the surety and the debtor. If the surety does not pay, the principal debtor is still not relieved of his obligation. Guaranty Distinguished from Suretyship: GUARANTY Guarantor promises to answer for the debt, default or miscarriage of the principal Liability of the guarantor depends upon an independent agreement to pay the obligation if the primary debtor fails to do so The engagement of the guarantor is a collateral undertaking The guarantor is secondarily liable SURETYSHIP Surety promises to answer for the debt, default or miscarriage of the principal (same) Surety assumes liability as a regular party to the undertaking Surety is charged as an original promisor A surety is primarily liable
MAIN DIFFERENCE: A surety undertakes to pay if the principal does not pay (insurer of the debt). A guarantor binds himself to pay if the principal cannot pay (insurer of the solvency of the debtor). Since the obligation of the surety is to pay so long as the principal does not pay (even if he can; even if he is solvent), the undertaking of the surety is more onerous than that of a guarantor who pays only in the event that the principal is broke. Illustration: A borrows P10,000 from B, with C agreeing to be the surety. A refuses to pay B out of spite. In this case, since C is a surety, B can immediately demand payment from C. If, in this case, C is a guarantor instead, B would have to exhaust all the property of A before he can collect from C. it is not enough that A refuses to pay even if he can; in order for C to be liable, A would have to be unable to pay. If you were a lender and the borrower offers as security either X as guarantor or a real estate mortgage, which one would you choose? Choose the mortgage. If you were the lender, a real estate mortgage is more advisable because you can collect against the property. In a guaranty/surety, you would have to go against the guarantor or
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surety – you would have to sue him, obtain judgment, and then execute judgment. This is subject to a lot of delays. The guarantor or surety can stall your claim. Art. 2048. A guaranty is gratuitous, unless there is a stipulation to the contrary. GENERAL RULE: Guaranty is gratuitous. EXCEPTION: Guaranty is onerous only if it is stipulated. What is the cause/consideration of a contract of guaranty? The cause of a contract of guaranty is the same cause which supports the principal obligation of the principal debtor. There is no need for an independent consideration in order for the contract of guaranty to be valid. The guarantor need not have a direct interest in the obligation nor receive any benefit from it. It is enough that the principal obligation has consideration. Art. 2049 A married woman may guarantee an obligation without the husband’s consent, but shall not thereby bind the conjugal partnership, except in cases provided by law. Art. 94 of the Family Code The absolute community of property shall be liable for: (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited. A married woman who acts as guarantor without the consent of the husband binds only her separate property unless the debt benefited the family. There is no express prohibition against a married woman acting as guarantor for her husband. Remember that now, in order to bind the absolute community, the consent of both spouses is needed. If only the consent of one spouse is obtained, the absolute community will not be liable unless the obligation redounded to the benefit of the community. When the husband acts as a guarantor for another person without the consent of the wife, the guaranty binds only the husband since the benefit really accrues to the principal debtor and not to the husband or his family. The exception is if the husband is really engaged in the business of guaranteeing obligations because in this case, his occupation or business is deemed to be undertaken for the benefit of the family. Art. 2050. If a guaranty is entered into without the knowledge or consent, or against the will of the principal debtor, the provisions of articles 1236 and 1237 shall apply. A contract of guaranty is between the guarantor and the creditor. It can be instituted without the knowledge or even against the will of the debtor, since the purpose of the contract is to give the creditor all the possible measures to secure payment. However, if the contract of guaranty is entered into without the knowledge or consent or against the will of the principal debtor, the effect is like payment by a 3rd person: 1. 2. The guarantor can only recover insofar as the payment has been beneficial to the debtor. The guarantor cannot compel the creditor to subrogate him in the creditor’s rights such as those arising from a mortgage, guaranty or penalty.
If the guaranty was entered into with the consent of the principal debtor, the guarantor is subrogated to all the rights which the creditor had against the debtor once he pays for the obligation. Illustration:
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A owes B P10,000. Without the knowledge of A, C guarantees the obligation. C pays A P10,000. C tries to collect the P10,000 from A, but A tells him that he has already paid B 4,000. In this case, C can only collect P6,000 from A since it was only the extent to which A was benefited by his payment. If the loan was secured by a mortgage, C cannot foreclose the mortgage if A does not pay him because he is not subrogated to the rights of B. Art. 2052. A guaranty cannot exist without a valid obligation. Nevertheless, a guaranty may be constituted to guarantee the performance of a voidable or unenforceable contract. It may also guarantee a natural obligation. A guaranty is an accessory contract and cannot exist without a valid principal obligation. So if the principal obligation is void, the guaranty is also void. BUT, a guraranty may be constituted to guarantee the following defective contracts and natural obligations: 1. 2. 3. Voidable: because the contract is binding unless it is annulled Unenforceable: because an unenforceable contract is not void. Natural obligations: even if the principal obligation is not civilly enforceable, the creditor may still go after the guarantor
Art. 2053. A guaranty may also be given as security for future debts, the amount of which is not yet known; there can be no claim against the guarantor until the debt is liquidated. A conditional obligation may also be secured. Continuing Guaranty (def) – A guaranty that is not limited to a single transaction but which contemplates a future course of dealings, covering a series of transactions generally for an indefinite time or until revoked. A continuing guaranty is generally prospective in its operation and is intended to secure future transactions (generally does not include past transactions). Examples:
1. Common example given by JPSP is the credit line – The bank allows you to borrow up to
a certain ceiling, but there is no release of funds yet. If you have an obligation with a third person and you default, the third person just needs to inform the bank, and the bank will release the money. The money released will be considered as a loan from the bank to you. The bank will allow the release of the money so long as it doesn’t exceed the ceiling.
2. To secure payment of any debt to be subsequently incurred – If the contract states that
the guaranty is to secure advances made “from time to time,” “now in force or hereafter made,” or uses the words “any debt,” “any indebtedness,” “any sum,” “any transaction,” the guaranty is a continuing guaranty.
3. To secure existing unliquidated debts – Future debts may also mean debts that already
exist but whose amount is still unknown. Art. 2053 may be misleading because it says that a guaranty may be constituted to secure future debts. The important thing to remember in the guaranty of future debts is that there must be an
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and penalties even if this will make his liability exceed that of the principal. If the guarantor binds himself for more than the liability of the principal debtor. A guarantor may bind himself for less. 2054.existing obligation already that is being guaranteed. the guarantor is liable only after the fulfillment of the condition. attorney’s fees. This is a valid guaranty because there is already an existing obligation (the 10K loan). it has to be certain that he really intends to incur such an obligation and that he proceeds with consciousness of what he is doing. how do the parties opt out of the rule? Guarantor and Lender should enter into a new and separate agreement. As an extra consideration for lending the money. if the creditor sues the guarantor. 2055. However. There is nothing to guarantee. Because without that existing obligation. RULE: Guaranty is never presumed. Guaranty of Conditional Obligations If the principal obligation is subject to a suspensive condition. but also all its accessories. the guaranty would be void. How do you opt out of this rule? Example: G guaranteed B’s 100K obligation to L to the extent of 100K. This is not valid. Should he have bound himself for more. Reason for the rule: Because a guarantor assumes an obligation to pay for another’s debt without any benefit to himself. Since 2054 provides that the guarantor cannot bind himself for more than the principal debtor. both as regards the amount and the onerous nature of the conditions. it is not valid under Article 2053 because there is no principal obligation yet. the happening of the condition extinguishes both the principal obligation and the guaranty. A guaranty is not presumed. so it cannot exist without the principal. Art. it shall comprise not only the principal obligation. They should take it out of the context of the guaranty and have a new agreement in which L would (kunwari) perform some service for G in consideration of the additional 20K. L wants an additional 20K from guarantor (gravy. Form required for Guaranty Guaranty must be IN WRITING Sheryl IID 2002 PAGE 17 . Since the contract of guaranty is a subsidiary and accessory contract. Guaranty is an accessory obligation. his obligations shall be reduced to the limits of that of the debtor. but not for more than the principal debtor. Example: G guarantees the 10K loan that B owes L and any other indebtedness that B may incur against L. Thus. provided with respect to the latter. the guarantor may be made to pay costs. G guarantees the loan that B and L will enter into tomorrow. Although it is for a future debt. It must be express. the guarantor’s liability cannot exceed that of the principal obligation. that the guarantor shall only be liable for those costs incurred after he has been judicially required to pay. including the judicial costs. Art. If it be simple or indefinite. If it is subject to a resolutory condition. his liability shall be reduced. according to JPSP). it must be express and cannot extend to more than what is stipulated therein.
must be in writing because it falls under the Statute of Frauds as a “special promise to answer for the debt. 2055: Extent of Guarantor’s Liability 1. to be enforceable. 2. it extends not only to the principal but also to all its accessories. In such cases. no. One who is obliged to furnish a guarantor shall present a person who possesses integrity. 2nd Paragraph of Art. default or miscarriage of another. Art. if the guarantor makes a direct or unconditional promise of guaranty (and not merely an offer). On the other hand. Sheryl IID 2002 PAGE 18 . 2056. it is presumed that he wanted to be bound not only to the principal but also to all its accessories. But Cayo pointed out a situation in class where this might be possible and JPSP agreed: If the lender asked for a guaranty precisely because there was a danger of the borrower absconding or becoming insolvent prior to maturity date. If he did not fix it.A contract of guaranty. Such a stipulation would defeat the purpose of a guaranty which is to answer for the default of the principal debtor. (Prospective application of the guaranty) However. Generally. a guarantor is liable only for the obligation of the debtor stipulated upon. there is no way that the guarantor can be liable since default comes only at maturity date. JPSP says that a surety is still covered by the SOF since it is still a promise to answer for the default of another person. the agreement is interpreted against the surety company that prepared it. this rule of construction is applicable only to an accommodation surety or one that is gratuitous. the principal could have fixed the limits of his responsibility solely to the principal.” De Leon textbook says that surety is not covered by the Statute of Frauds. there is no need for acceptance and notice of such acceptance from the creditor. to the exclusion of accessories. then the guaranty is valid. capacity to bind himself. Construction of Guaranty A guaranty is strictly construed against the creditor and in favor of the guarantor and is not to be extended beyond its terms or specific limits. If the guaranty is only up to the date of maturity. EXCEPTION: If the guarantor merely offers to become a guaranty. Definite guaranty – The liability of the guarantor is limited to the principal debt. and not to obligations assumed PREVIOUS to the execution of the guaranty unless an intent to be so liable is clearly indicated. and sufficient property to answer for the obligation which he guarantees. Doubts should be resolved in favor of the guarantor or surety. What is not covered by the SOF is being a solidary co-debtor. Is a stipulation that says that the guaranty will subsist only until maturity of the obligation valid? Generally. This is because in entering into the agreement. It does not apply in cases where the surety is compensated with consideration. only the guarantor binds himself to do something. it does not become a binding obligation unless the creditor accepts and notice of acceptance is given to the guarantor. GENERAL RULE: It is not necessary for the CREDITOR to expressly accept the contract of guaranty since the contract is unilateral. Indefinite or simple guaranty – If the agreement does not specify that the liability of the guarantor is limited to the principal obligation.
Jurisdiction over the guarantor: Jurisdiction over the guarantor belongs to the court where the principal obligation is to be fulfilled. Effect of Subsequent Loss of Qualifications The qualifications need only to be present at the time of the perfection of the contract. 2. the supervening incapacity of the guarantor does not extinguish the guaranty but merely gives the creditor the right to demand a replacement. and has resorted to all the legal remedies against the debtor. the qualifications of a guarantor are the ff: 1.The guarantor shall be subject to the jurisdiction of the court of the place where this obligation is to be complied with. Art. in accordance with the rule that accessory follows the principal. the creditor’s claim passes to the heirs of the deceased guarantor. In case the guarantor becomes insolvent (since he loses sufficient property to answer for the obligation which he guarantees) there is no need for a judicial declaration of insolvency What is the effect of the guarantor’s death on the guaranty? The guaranty survives the death of the guarantor. The guarantor cannot be compelled to pay the creditor unless the latter has exhausted all the property of the debtor. 2057. In case the guarantor is convicted in the first instance of a crime involving dishonesty (since he loses integrity) 2. When may the creditor NOT demand another guarantor? Where the creditor has stipulated in the original agreement that a specified person should be the guarantor. If he so chooses. nor will it extinguish the contract of guaranty. The subsequent loss of the qualifications would not extinguish the liability of the guarantor. 2057. Integrity Capacity to bind himself Sufficient property to answer for the obligation which he guarantees But the creditor can waive these requirements. The rules on guaranty do not expressly provide that the guaranty is extinguished upon the death of the guarantor. 3. But the creditor can waive this right and choose to hold the guarantor to his bargain. Sheryl IID 2002 PAGE 19 . the creditor may demand another who has all the qualifications required in the preceding article. 2058. If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent. The case is excepted where the creditor has required and stipulated that a specified person should be the guarantor. The general rule is that a party’s contractual rights and obligations are transmissible to his successors. Applying Art. CHAPTER 2 EFFECTS OF GUARANTY Art. the creditor may demand another guarantor with the proper qualifications. he is bound by the terms of the agreement and he cannot thereafter deviate from it. When may the creditor demand another guarantor? 1. However. Ideally.
and The creditor has resorted to all legal remedies against the debtor (ex. the ff. 2. 3. The creditor should have exhausted all the property of the debtor.The liability of the guarantor is only accessory and subsidiary. Thus. 2. 3. When the liability assumed by the guarantor is Solidary. Accion pauliana/ rescission of fraudulent alienations) Can the creditor implead the guarantor as a co-defendant with the debtor? No. Article 2062 says that creditor should proceed against the principal debtor alone. When the principal debtor is Insolvent. 2. This excussion shall not take place: 1. If it may be presumed that an execution on the property of the principal debtor would not result in the satisfaction of the obligation. 2. Under Art. since his liabilities exceed his assets. or cannot be sued within the Philippines unless he has left a manager or representative. B has 1M in assets which are all still with him and 1. GENERAL RULE: The guarantor is entitled to demand that the creditor first exhaust the properties of the principal debtor before collecting from the guarantor. In this case. If he has bound himself solidarily with the debtor. Why? Because even if B is apparently insolvent. but it still depends on the situation. there is still no claim against these assets by the other creditors.5M in liabilities. 5. 2059 If the guarantor does not comply with Art. What kind of insolvency? JPSP says it’s practical insolvency meaning assets are less than liabilities. he becomes a surety with primary liability. If he fails to interpose it as a defense before judgment is rendered against him. Except in cases provided in 2059. 4. G still has the benefit of excussion. B defaults. If the guarantor has expressly renounced it. and L can still file an action for collection Sheryl IID 2002 PAGE 20 . 2084) Where a pledge or mortgage has been given by him as a special security. When he has absconded. Examples: B borrows 100K from L guaranteed by G. 4. Can L collect from G right away? No. 5. 2059. • In this case. 2060 If the guarantor is a judicial bondsman and sub-surety (Art. 2059 (RUSIA) 1. EXCEPTIONS: 1. They can still be accessed by L. Art. • The waiver must be made in express terms. In case of insolvency of the debtor. When the right is Renounced or waived. conditions must be fulfilled: 1. in order for the creditor to collect from the guarantor. 3. EXCEPTIONS UNDER ART.
In order that the guarantor may make use of the benefit of excussion. In this case. L must file an action for collection and an accion subrogatoria so that he can exercise B’s right to collect the money from X. G paid. Therefore. 2. it is not even necessary that the debtor is judicially declared insolvent or bankrupt. 1. How should it be made? The demand must be an actual demand. He demanded reimbursement from Lender. Joining the guarantor in the suit against the principal is not the demand intended by law. and he can still pay L. Lender made a demand for payment against G. • • If exhausting the properties of the debtor would be useless since it would still not satisfy the obligation. Example: B borrowed 100k guaranteed by G. B defaulted. How does the lender get around this requirement? If the lender wants to be able to go against the guarantor right away without having to go through excussion. Payment constitutes a waiver of the benefit. to the extent of said property. In order to demand that the creditor exhaust the properties of the principal debtor. B defaults and has zero assets but has a 200K credit/receivable from X. Additional Requisites in Order to Claim the Benefit of Excussion Guarantor tells Lender “Exhaust Borrower’s property first before collecting from me. and point out to the creditor available property of the debtor within Philippine territory sufficient to cover the amount of the debt. G found out that he had the benefit of excussion. 2061. So even if the borrower has fled to the Bahamas. 2060. he must get the guarantor to either sign a waiver of the benefit of excussion or make him solidarily liable (a surety). The guarantor having fulfilled all the conditions required in the preceding article. B borrows 100K from L guaranteed by G.” Is this enough for the Guarantor to claim the benefit of excussion? No.of money against B. When should the demand be made? The demand can only be made after judgment on the debt. So in this case. Later. Art. Art. Only if these actions fail can L then collect from G. Still no. On due date. When the principal debtor Absconds or cannot be locally sued. the guarantor must: Sheryl IID 2002 PAGE 21 . the creditor who is negligent in exhausting the property pointed out shall suffer the loss. To collect from the guarantor. When resort to all legal remedies would be a Useless formality. the creditor must make a prior demand for payment from the guarantor. he must set it up against the creditor upon the latter’s demand for payment from him. if he still has properties here. 5. 4. the guarantor cannot require the creditor to resort to these legal remedies against the debtor anymore. G still should still have the benefit of excussion. Can G recover? G cannot recover. even if B is insolvent on paper. his properties are still with him. for the insolvency of the debtor resulting from such negligence. since doing so would be a useless formality. Lender must sue against the property first before collecting from the guarantor. Can L collect from G.
except in the cases mentioned in Article 2059. G’s liability is also reduced to 8K in case D does not pay. Example: D owes C 10K with G as guarantor. The guarantor may appear so that he may. Reason: A compromise binds only the parties thereto and not third persons. which allows the guarantor to hide his assets in the meantime. and 2.) Once the guarantor has fulfilled the requisites for making use of the benefit of excussion. The guarantor must be notified so that he may appear and set up his defenses if he wants to. the creditor has the duty to exhaust all the property of the debtor and to resort to all legal remedies against the debtor. (Therefore. set up such defenses as are granted him by law. if he so desires. It’s like a standing loan by the bank in favor of the debtor to answer for a debt in favor of third persons.1. Set up the benefit of excussion against the creditor upon demand for payment by the creditor from him. since the compromise is beneficial to G. Art. The disadvantage is that there is a time lag between the judgment against the principal debtor and the one against the guarantor. He cannot sue the guarantor with the principal or the guarantor alone except in the cases mentioned in Art. So. Sheryl IID 2002 PAGE 22 . collecting from the guarantor is really a two-step process. Lender must sue the guarantor to claim against him. Exception: If the compromise has a benefit in the nature of a stipulation in favor of a third person. That which is entered into between the guarantor and the creditor benefits but does not prejudice the principal debtor. In a bank guaranty. The purpose of the two-step process is to allow the guarantor to make use of the benefit of excussion. he shall suffer the loss to the extent of the value of the property. the former shall ask the court to notify the guarantor of the action. Art. the compromise may bind that third person. If the guarantor appears. Point out to the creditor available property of the debtor within Philippine territory sufficient to cover the amount of debt. the creditor need only inform the bank of the default and the bank releases the money. If he does not appear. If he fails to do so. property located abroad or which is not easily available is not included among those that the guarantor can point out to the creditor. D and C agree to reduce the debt to 8K. The creditor must sue the principal debtor alone. A compromise between the creditor and the principal debtor benefits the guarantor but does not prejudice him. judgment is not binding on him. 2059 where the guarantor loses the benefit of excussion. Thus. which must be against the principal debtor alone. in case he is unable to pay. if the debtor does not pay. even if judgment should be rendered against the principal debtor and the guarantor in case of appearance by the latter. 2063. it cannot prejudice the guarantor or debtor who was not a party to the compromise. How to get around this two-step process: A bank guaranty or a letter of credit. 2062. The benefit of excussion mentioned in article 2058 shall always be unimpaired. he is still given the benefit of exhaustion event after judgment is rendered against the principal debtor. In every action by the creditor.
(2) The legal interests thereon from the time the payment was made known to the creditor. (3) The expenses incurred by the guarantor after having notified the debtor that payment had been demanded of him. The creditor cannot claim from the guarantors except the shares which they are respectively bound to pay. The indemnity comprises: (1) The total amount of the debt. the obligation to answer for the same is divided among all. 2. Once the guarantor pays the principal obligation. (4) Damages. Art. 2066. This is because Sheryl IID 2002 PAGE 23 . 2. 2065. The guarantor of a guarantor shall enjoy the benefit of excussion both with respect to the guarantor and to the principal debtor. Exceptions: 1. if they are due. even though it did not earn interest for the creditor. 3. When is there a benefit of division among several guarantors? The following conditions must concur in order that several guarantors may claim the benefit of division: 1. 2. Interest – The guarantor is entitled to interest from the time notice of payment of the debt was made known to the debtor. The benefit of division among the co-guarantors ceases in the same cases and for the same reasons as the benefit of excussion against the principal debtor. he is liable for damages in the form of interest.Art. The guarantor cannot ask for more than what he has paid. They are not liable to the creditor beyond the shares which they are bound to pay. 2059 (RUSIA). Art. If solidarity has been expressly stipulated. There should be several guarantors Of only one debtor For the same debt In this case. If he delays.The co-guarantors cannot avail themselves of the benefit of division under the circumstances enumerated in Art. the principal debtor must pay him back consisting of: (TIED) 1. The guarantor can collect interest even if the principal obligation was a loan without an interest. The guarantor who pays the debtor must be indemnified by the latter. unless solidarily has been expressly stipulated. 2064. The Total amount of the debt – The guarantor has the right to demand reimbursement only when he has actually paid the debt UNLESS there is a stipulation which gives him the right to demand reimbursement as soon as he becomes liable even if he has not yet paid. A sub-guarantor can demand the exhaustion of the properties both of the guarantor and of the principal debtor before he pays the creditor. The notice is a demand upon the debtor to pay the guarantor. Should there be several guarantors of only one debtor and for the same debt. the liability of the co-guarantors is joint.
he would only have to pay P500K. he becomes subrogated to the rights of the creditor against the debtor. which requires the debtor’s consent. The guarantor who pays is subrogated by virtue thereof to all the rights which the creditor had against the debtor. who was a compadre of L. Damages – Guarantor is entitled to damages only if they are due. Exceptions to the right to indemnity of the guarantor 1. G has no inducement. 2. he would be getting the same amount that he pays? Sheryl IID 2002 PAGE 24 . G tells B that if G pays the P500K. he can only recover P500K from B. But the right of subrogation is given only to the guarantor if he has the right to be reimbursed. in which they agreed that should G become liable. G. he cannot demand of the debtor more than what he has really paid. B owes L P1M. B should reimburse him P600K. When the guarantor pays. The basis of the right is the delay of the debtor in reimbursing. What happens really is just a change in creditor. while G earns P100K. If. G tells B about the deal with L. The right of subrogation is given to the guarantor so that he can enforce his right to indemnity/ to be reimbursed. This would give B a savings of P400 K. Why would he go through the trouble when in any case. he would only pay P500K. Since there’s no rule. This is limited to those expenses incurred by the guarantor after having notified the debtor that payment has been demanded of him by the creditor. Expenses – This refers only to those expenses that the guarantor has to satisfy in accordance with law as a consequence of the guaranty. But the payment is valid with respect to the creditor. If B defaults and Guarantor pays P500K. Art. The creditor need not formally cede his rights to the guarantor. Compromise B owes lender P1M. Where the guaranty is constituted without the knowledge or against the will of the debtor. Lender was a good friend of Guarantor and agreed that if G became liable. Let’s say there was no such rule. he has no right to be reimbursed. 2067. 3. no incentive to broker that deal with his compadre L. for some reason. Everyone will be happy. 4. the guarantor can only recover insofar as the payment had been beneficial to the debtor Payment by a third person who does not intend to be reimbursed by the debtor is deemed to be a donation.the right of the guarantor is independent of the principal obligation to the creditor. But since there is a rule that says that G cannot ask for more than what he has actually paid. It arises by operation of law upon payment by the guarantor. for example. If the guarantor has compromised with the creditor. foreclose a mortgage in case of failure of the debtor to reimburse him. Waiver 3. He may. but the obligation subsists in all other aspects. The guarantor becomes the creditor. brokered a deal with L. Is there a situation where this rule would even be disadvantageous to the Debtor? Yes. not the original P1M. he cannot subrogate either.
and the latter not being aware of the payment. Guarantor’s remedy here is against sneaky Creditor. As compensation for the service rendered by G. 2071. This is like the situation in 2068. B will pay him P100K. Is Debtor liable? No. Had he informed debtor. Art. If the guarantor has paid without notifying the debtor. only this time. the guarantor can reimburse from the principal debtor. and the creditor becomes insolvent. Art. If he does not give notice. Had Guarantor given notice to Debtor. the former has no remedy whatever against the debtor. If the guarantor still pays before the expiration of the period. guarantor should first give notice to the principal debtor. in case of gratuitous guaranty. aside from the guarantor who did not inform the debtor. Art. If he is solvent. Guarantor is only liable if the debtor defaults. The guarantor. 2070. Art. It is a gratuitous guaranty The guarantor was prevented by a fortuitous event from informing the debtor of payment Creditor becomes insolvent Remember that the culprit here. but there can be no default before the expiration of the period. it becomes demandable only upon expiration of the period. he cannot demand reimbursement of the debtor until the expiration of the period unless the payment has been ratified by the debtor. Even in such a case. is the sneaky creditor who nonchalantly received payment twice. So the agreement is taken out of the context of the guaranty and everyone is happy. Example: Debtor pays Creditor. the guarantor must collect from him. the debtor shall reimburse the guarantor for the amount paid. But Creditor is sneaky and tells Guarantor that Debtor defaulted. debtor would not have paid. 3. But if he is insolvent and the three requisites above are present. guarantor still cannot recover from debtor because he should have informed debtor of his intention to pay. Exception: Guarantor may claim reimbursement from debtor if (requisites): 1. Debtor can invoke the fact of payment to the Creditor against Guarantor. Obligation of the guarantor before he pays the creditor Before he pays the creditor. he would have known of the defenses that Debtor had against Creditor which would have made him think twice about paying. he must wait for the period to expire before he can collect from the debtor. If the debt was for a period and the guarantor paid it before it become due. even before having paid. Nevertheless.How do you get out of this situation? B should “hire” G as his agent to broker the deal with L. repeats the payment. may proceed against the principal debtor: (1) When he is sued for payment. without telling Debtor. Guarantor will suffer the loss of his failure to comply with his one and only obligation before paying which is to notify the debtor. the guarantor pays before the debtor pays. Exception: Guarantor need not wait for the period if the debtor ratifies payment or consents to it. Guarantor makes a demand for reimbursement from Debtor. If the principal debt was one with a period. if the guarantor was prevented by a fortuitous event from advising the debtor of the payment. 2069. the latter may enforce against him all the defenses which he could have set up against the creditor at the time the payment was made. 2. the debtor may enforce all the defenses which he could have set up against the creditor at the time of payment. but only against the creditor. 2068. Sheryl IID 2002 PAGE 25 . So Guarantor pays. If the guarantor should pay without notifying the debtor.
his share shall be borne by the others. This article applies only if there are two or more guarantors of the same debtor for the same debt and one of them has paid: 1. he is entitled to be reimbursed the amount of the shares of the other guarantors. (6) If there are reasonable grounds to fear that the principal debtor intends to abscond. Art. A can collect 30 K each from B and C. When there are two or more guarantors of the same debtor and for the same debt. by virtue of a judicial demand. 2072. The provisions of this article shall not be applicable. Art. (3) When the debtor has bound himself to relieve him from the guaranty within a specified period. the guarantor who satisfies the debt may sue either the person so requesting or the debtor for reimbursement. (5) After the lapse of 10 years. Example: A. the guarantor has these rights against the debtor BEFORE he makes payment: 1.(2) In case of insolvency of the principal debtor. (7) If the principal debtor is in imminent danger of becoming insolvent. If one of them pays the entire obligation. Right to be released if lender agrees Release from the guaranty requires that the lender consent because the guaranty is actually a contract between the lender and the guarantor Right to demand a security 2. and this period has expired. including the payer. Sheryl IID 2002 PAGE 26 . In all these cases. B. by reason of the expiration of the period for payment. The liability of the guarantors is joint. If any of the guarantors should be insolvent. (4) When the debt has become demandable. at the request of another. or to demand a security that shall protect him from any proceedings by the creditor and from the danger of insolvency of the debtor. The purpose is to enable the guarantor to take measures to protect his interest in view of the probability that debtor would default and he would be called upon to answer for the obligation. the action of the guarantor is to obtain release from the guaranty. 2073. Under these 7 circumstances. when the principal obligation has no fixed period for its maturity unless it be of such nature that it cannot be extinguished except within a period longer than 10 years. unless the payment has been made in virtue of a judicial demand or unless the principal debtor is insolvent. the one among them who has paid may demand of each of the others the share which is proportionately owing from him. If one. A pays 90K. becomes a guarantor for the debt of a third person who is not present. or when the principal debtor is insolvent. 2. in the same proportion. C guaranty the 90K loan of X.
C are guarantors of X. Since the old principal contract is extinguished. B. in case of the insolvency of the guarantor for whom he bound himself. is responsible to the co-guarantors in the same terms as the guarantor. 2. the guaranty is extinguished altogether. because the defense is personal to X. D is a guarantor of A. B. A pays even if the obligation has prescribed already. C guaranty the obligation of X who was a minor. A can collect 45 K from C. and for the same causes as all other obligations. A pays. Example: A. Because guaranty is an accessory and subsidiary contract. the co-guarantors must answer for his share. Art. A becomes insolvent. changing the legal effect of the contract. A and C must shoulder B’s share.But unlike in an ordinary joint obligation. Can they refuse to pay? Yes. C guaranty the 90K loan of X. they can invoke defenses inherent in the obligation. Increase in the principal amount. the same defenses which would have pertained to the principal debtor against the creditor. if one of the guarantors is insolvent. B becomes insolvent. Can C reimburse from D? Yes. B. the co-guarantors may set up against the one who paid. according to Art. Examples: 1. But the extinguishment of the guaranty does not always carry with it the extinguishment of the principal obligation. The obligation of the guarantor is extinguished at the same time as that of the debtor. C pays the entire obligation. 2075. regardless of the extent of the liability assumed by the guarantor Substitution of the principal debtor Extension or shortening of the term of the principal debt In these cases. This is because the alteration would result in a novation of the principal contract which is consequently extinguished and replaced with a new one. So their liabilities become 45K each. it is extinguished once the principal obligation is extinguished. A demands reimbursement from B and C. In the case of the preceding article. When is an alteration material? There must be a change which imposes a new obligation or added burden or which takes away some obligation already imposed. A pays 90K. A sub-guarantor. Sheryl IID 2002 PAGE 27 . 3. A. the accessory contract of guaranty/surety is also extinguished. B. A. such as prescription. Decrease in the amount of the principal obligation: The guaranty subsists and is benefited by the change since the guarantor cannot bind himself for more than the principal obligation. 2076. Can B and C refuse to reimburse him on the ground that X is a minor? No. Example: A. Any agreement between the creditor and the principal debtor which essentially varies the terms of the principal contract without the consent of the surety will release the surety from liability. 2074. and which are not purely personal to the debtor. C guaranty the obligation of X. the obligation behaves like a solidary obligation. CHAPTER 3 EXTINGUISHMENT OF GUARANTY Art. Art. In this sense. 2075. against the co-guarantor who pays.
2080. The creditor releases A without the consent of B and C. If the creditor voluntarily accepts immovable or other property in payment of the debt. If the creditor grants the debtor an extension of time within which to comply with the principal obligation. benefits all to the extent of the share of the guarantor to whom it has been granted. It is immaterial whether the guarantor suffers actual prejudice as a result of the extension. If the creditor merely fails to make a demand on due date. Art. This is a case of dacion. 2078. Can the guarantor sue the creditor for his delay in making a demand. C are guarantors of X for 90K. it is not an extension. They shall be liable only for 60K or 30K each. The release should benefit B and C to the extent of 30K (A’s share). and the guarantor would not be able to ask for reimbursement. Art. B. their liability is still 90K or 45K each. the guaranty is extinguished. even if he should afterwards lose the same through eviction. the accessory obligation is also extinguished and is not revived even if the creditor is subsequently evicted from the property. but not those that are purely personal to the debtor. the guaranty is extinguished. This is because the principal debtor could become insolvent during the extension period. Since dacion extinguishes the principal obligation. A release made by the creditor in favor of one of the guarantors. Therefore there is no benefit of excussion. Art. An extension granted to the debtor by the creditor without the consent of the guarantor extinguishes the guaranty. 2079. The guarantors. But if the guarantor consents or waives his right under this article in advance. As long as the period is extended. The length of time of the extension is also immaterial. 2077. are released from their obligation whenever by some act of the creditor they cannot be subrogated to the rights. The guarantor may set up against the creditor all the defenses which pertain to the principal debtor and are inherent in the debt. 2081. Art. A. Sheryl IID 2002 PAGE 28 .Art. The creditor releases A with the consent of B and C. the guarantor is released. without the consent of the others. A. even though they are solidary. The extension must be based on a new agreement between the debtor and creditor. The mere failure on the part of the creditor to demand payment after the debt has become due does not of itself constitute any extension of time referred to herein. thereby lengthening the risk of the insolvency of the principal debtor? No. C are guarantors of X for 90K. Chapter 4 Legal and Judicial Bonds The only important thing you have to remember about a legal bond is that it is a surety. Since B and C consented to the release. B. mortgages and preference of the latter. the extension will not extinguish the guaranty.
(4)Third persons who are not parties to the principal obligation may secure the latter by pledging or mortgaging their own property. (2)That the pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged. What are the characteristics of pledge? [RAUS] Pledge is: 1. Article 2086. 2. 2. Acessory. the things in which the pledge or mortgage consists may be alienated for the payment to the creditor. WHAT ARE THE DIFFERENCES BETWEEN PLEDGE AND MORTGAGE? 1. If the pledgor is a third person. the cause it the compensation received or the liberality of the pledgor. Unilateral. Subsidiary. 4. The provisions of article 2052 are applicable to a pledge or mortgage. It is also of the essence of these contracts that when the principal obligation becomes due. that they be legally authorized for the purpose. Voluntary or conventional (created by agreement of the parties). mortgage on immovables. The following requisites are essential to the contracts of pledge and mortgage: (1)That they be constituted to secure the fulfillment of a principal obligation. WHAT IS PLEDGE? It is a contract by virtue of which the debtor delivers to the creditor or to a third person a movable or a document involving incorporeal rights for the purpose of securing the fulfillment of a principal obligation with the understanding that when the obligation is fulfilled. Legal (by operation of law).PLEDGE AND MORTGAGE PROVISIONS COMMON TO PLEDGE AND MORTGAGE Article 2085. Cayo IID 2002 PAGE 29 . the thing delivered shall be returned with all its fruits and accessions. 3. it may guarantee the performance of a voidable or unenforceable contract or a natural obligation] Article 2087. because it is perfected by delivery of the thing pledged. because the obligation of the creditor does not arise until fulfillment of the principal obligation. Real. 2. [A guaranty cannot exist without a valid obligation. the consideration is the principal contract. because it has no independent existence. WHAT IS THE CONSIDERATION IN PLEDGE? If the pledgor is also the debtor. because it creates an obligation solely on the part of the creditor to return the thing pledged upon fulfillment of the principal obligation. However. (3)That the persons constituting the pledge or mortgage have the free disposal of their property and in the absence thereof. Delivery – pledge requires delivery for perfection. What are the kinds of pledge? Pledge may be either: 1. Mobility – pledge is constituted on movables. mortgage does not.
3. Requisites to bind third person/s – pledge, to bind third persons must be in a public
instrument; mortgage, must be registered in the proper registry. A LOAN IS SECURED BY BOTH A PLEDGE AND A GUARANTY. CAN THE CREDITOR REFUSE PAYMENT BY THE GUARANTOR AND CHOOSE TO FORECLOSE IN ORDER TO SATISFY THE DEBT? No, payment by the guarantor cannot be refused. WHAT ARE THE ESSENTIAL REQUISITES OF PLEDGE AND MORTGAGE? [PRADO]
1. Purpose - To secure fulfillment of principal obligation; 2. Real – There must be delivery of the thing. 3. Alienation – when the principal obligation becomes due and the debtor defaults, the thing
may be alienated to satisfy the former.
4. Disposal – Pledgor/mortgagor must have free disposal of the thing or capacity to dispose. 5. Ownership – Pledgor/mortgagor must be the absolute owner of the thing;
PURPOSE: To secure fulfillment of a principal obligation
WHAT IF THE THING PLEDGED/MORTGAGED IS SUBSEQUENTLY LOST; WHO BEARS THE LOSS? IS THE PRINCIPAL OBLIGATION EXTINGUISHED? The pledgor bears the loss. Remember that there hasn’t been transfer of ownership. The principal obligation is of course not extinguished, the pledge/mortgage is only accessory. However, the debtor must replace the thing or lose the benefit of the period. Pledge/mortgage is a direct lien on the property. It is better than guarantee because the property pledged can be sold upon default by the debtor, unlike in guaranty where several requirements have to be complied with first. PROBLEM: D TRANSFERS PROPERTY TO C AND AT THE SAME TIME EXECUTES AN INDEMNITY AGREEMENT; OR D TRANSFERS PROPERTY TO C TO SECURE AN EXISTING OBLIGATION. HOW WILL THE TRANSFER BE CHARACTERIZED? Both transfers will be characterized as pledges.
REAL: There must be delivery of the thing to perfect the contract.
An agreement to pledge, when there is breach, gives rise to damages.
ALIENATION: When the principal obligation becomes due and the debtor defaults, the thing may be alienated to satisfy the former.
DOES THE CREDITOR HAVE TO GO TO COURT TO ENFORCE THE PLEDGE OR MORTGAGE? No, to require litigation would be to nullify the lien and defeat the purpose of the contract.
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WHAT DO “FREE DISPOSAL” AND “CAPACITY TO DISPOSE” OF THE PROPERTY MEAN? Free disposal means that the property is not subject to any claim by a third person. Capacity to dispose means that though the pledgor/mortgagor does not have free disposal, the third person with a claim authorized him to dispose (tingin ko lang). In case of corporations, the board should adopt a resolution to approve the pledge/mortgage. If what is to be pledged or mortgaged constitutes all of the corporation’s assets, 2/3 of outstanding capital stock must approve. Rule on consent: If pledgor/mortgagor is married, consent of spouse is needed; if agent, authorization of principal. For married persons – how to wiggle out of a pledge or mortgage agreement: Pledge or mortgage your conjugal property without your spouse’s signature. In case the property is foreclosed, you can raise the defense that there was no consent (remember, half consent is no consent!) What if the pledge was constituted to secure an obligation of the family business, doesn’t this redound to the benefit of the conjugal partnership? No, JPSP said that the pledge of conjugal property con only be considered to redound to the benefit of the partnership if the family business is constituting pledges. If you are the pledgee/mortgagee, check if pledgor/mortgagor has authority to dispose of the property. Another example on free disposal or legal authority: Ex. Pledgor corporation is placed under receivership. The corporation cannot pledge shares of stock because pledge is a disposition requiring court approval.
CAN FUTURE PROPERTY BE PLEDGED? No, it is essential that the pledgor be the absolute owner of the thing. Note: It is the sale and not the registration in the LTO that transfers ownership of a vehicle. Note: A co-owner can only pledge/mortgage his ideal share in the co-ownership. Note: A mortgagor can rely on what is on the face of the Torrens title. WHAT IS MEANT BY ABSOLUTE OWNERSHIP? BOTH BENEFICIAL AND LEGAL TITLE must vested in the pledgor/mortgagor Ex. Trustee is legal owner of shares of stock; trustor is beneficial owner: Neither can pledge the shares. Pledge/mortgage can’t be constituted without a principal obligation even if there is a subsequent principal obligation. This is different from situation where the lender extends a credit line for 1M, though borrower has not yet drawn, the credit line can still be secured via pledge/mortgage. Ex. deed of assignment/absolute sale to secure fulfillment of obligation implied trust according to the SC. this is a mortgage or an
The pledgor/mortgagor must be absolute owner of the thing or the property. The creditor may rely on the title/stock certificate if there is no notice of defect in title. However, failure of the pledgor to present the thing is a red flag that should put the pledgee on guard as to the pledgor’s right to pledge the thing.
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Though the pledgor must own the thing and have free disposal of it, see the following problem discussed in class: Ex. On day 1, stocks are sold to X with the condition that the sale will be effective if X tops the bar. On day 2, X pledges the stocks. On day 3, the bar exam results come out, with X in the number one spot. Is the pledge valid? Yes, the pledge is valid. Remember Oblicon, conditional obligations? The effects of a conditional obligation to give, when the condition happens, retroact to the date of the constitution of the obligation. OWNERSHIP RETROACTS TO DAY 1. In the above condition, what if the condition is resolutory? As long as the pledge is registered in a public document, it is valid and binding as to third persons. Ex: Day 1 - X receives from A shares of stock with the resolutory condition that they shall be returned to A if X does not pass the bar. Day 2 – X pledges the shares. Day 3 – X fails the bar. Is the pledge valid? Yes. As long as the pledgee registered the pledge in a public instrument, such pledge is binding on A. *But if you use the argument that the effects retroact, doesn’t that mean that when X pledged the things, he wasn’t the owner? I suppose the public instrument is stronger than the legal fiction. CAN THE CREDITOR IMMEDIATELY ACCEPT A PLEDGE FURNISHED BY A DEBTOR IF THE PLEDGE BELONGS TO A THIRD PERSON? No, the creditor cannot require on the word of the pledgor/mortgagor alone, he must exercise due care and make sure the pledge/mortgage has given consent. This is especially true in the banking industry, which is impressed with public interest. WHAT IS THE CONSEQUENCE THEN IF THE CREDITOR DOES NOT VERIFY WITH THE PLEDGOR/MORTGAGOR? The pledge/mortgage is null and void. Article 599 gives the owner of a movable who has been unlawfully deprived thereof the right to recover the same.
(1) Article 2088. The creditor cannot appropriate the things given by way of pledge or mortgage, or
dispose of them. Any stipulation to the contrary is null and void. WHAT DOES THE CREDITOR WITH THE PLEDGE/MORTGAGE WHEN THE DEBTOR DEFAULTS? The creditor can move for the sale of the thing pledged or mortgaged. WHAT IF THE CREDITOR WANTS TO ACQUIRE THE THING? He may purchase it at the public auction. WHAT IF THERE IS A STIPULATION THAT THE CREDITOR WILL ACQUIRE THE THING UPON DEFAULT? The stipulation (pactum commissorium) is null and void. WHAT ARE THE REQUISITES FOR PACTUM COMMISSORIUM TO EXIST? 1. There should be a pledge/mortgage; the debtor. ARE THERE ANY EXCEPTIONS TO PACTUM COMMISSORIUM?
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2. There should be a stipulation for AUTOMATIC appropriation or the thing in case of default by
Valid? YES. This would in effect be a novation of the pledge/mortgage. there is automatic transfer of ownership. Article 2089. Pledgee has the option to purchase the thing upon default at price certain. The execution of document transferring the shares is only a confirmation of the sale that was already consummated automatically. HOW CAN YOU OPT OUT OF THE PROHIBITION ON PACTO COMMISSORIO? 1. VALID? NO. Ex. in this case. The indivisibility of a pledge or mortgage is not affected by the fact that the debtors are not solidarily liable. A pledge or mortgage is indivisible. You can enter into another contract subsequent to the pledge/mortgage. non-compliance would give the creditor. Article 2090. the principal contract will subsist. Valid? Yes. X corporation pledges shares. There can be a stipulation granting the creditor authority to take possession and not . it is not automatic. the EFFECTIVE ACT IS DEFAULT. WHAT IS THE REASON FOR THE PROHIBITION? The value of the thing pledged or mortgaged is usually more than the amount of the obligation. pledgee is attorney in fact of pledgor. There must be a subsequent sale. but an action for damages. In fact. there is need for another agreement to be entered into. IS IT VOID? No. only the stipulation is void. The debtor can voluntarily cede the property to the creditor. There is no automatic transfer of ownership. Upon default. Cayo IID 2002 PAGE 33 4. each one of them guarantees only a determinate portion of credit. Article 2112 provides that if the thing pledged or mortgaged is not sold in two public auctions. even though the debt may be divided among the successors in interest of the debtor or of the creditor. the debtor’s heir who has paid a part of the debt cannot ask for the proportionate share of extinguishment of the pledge or mortgage as long as the debt is not completely satisfied. Therefore. not a right to the property. Examples on pactum commissorium: Ex. 2.Yes. The debtor. pledgor conveys property to pledgee by dation. It is not automatic. shall have the right to the extinguishment of the pledge or mortgage as the portion of the debt for which each thing is specially answerable is satisfied. Valid? Yes. From these provisions is excepted the case in which. The prohibition applies only to stipulations made in the contract of pledge/mortgage. to the prejudice of the other heirs who have not yet been paid. upon which. the creditor may appropriate the same. upon default. there being several things given in mortgage or pledge. Ex. pledgee sells the things pledged at market price and applies profits to the outstanding obligation. There can be a stipulation where the debtor merely promises to sell. for PC to exist. If the agreement is that. and for the purpose. Neither can the creditor’s heir who has received his share of the debt return the pledge or cancel the mortgage. WHAT HAPPENS TO THE CONTRACT OF PLEDGE/MORTGAGE IF THERE IS A STIPULATION OF PACTUM COMMISSORIUM. ownership of the property upon foreclosure. the pledge agreement states that pledgee has authority to instruct Corporate Secretary of X to transfer shares in name of pledgee in case of default. Remember. 3. Ex. the sale of the thing to satisfy the obligation is the essence of pledge.
The bank only released a portion of the loan. there is no pledge but there is an agreement to enter into a pledge. Pledge is indivisible. All 100 mortgages may be in the same document. voidable. but don’t deliver to the pledgee or a third person/s. the court ordered a corresponding portion of the REM to be released. without prejudice to the criminal responsibility incurred by him who defrauds another. Creditor took over management but the business failed. Cayo IID 2002 PAGE 34 . fees. then when the corresponding portion is paid. stocks). or of a third person by common agreement. where the fees are only paid once. be they pure or subject to a suspensive or resolutory condition. Remember. 3. things which he knew were subject to some burden. Can delivery be made to the pledgor? Yes. In accordance with the schedule. Delivery may be the actual thing or a title (certificates of deposit. provided they are susceptible of possession. unenforceable obligations. the corresponding pledge/mortgage is extinguished. Article 2091. however. What may be the objects of pledge? Movables within the commerce of man.WHAT DO YOU MEAN PLEDGE/MORTGAGE IS INDIVISIBLE? Ex: 1M Loan. Pledge/mortgage are real contracts. Or. can you ask release of corresponding amount of units? No release. it is necessary. if he is acting as agent of pledgee or where the thing pledged is so unwieldy as to make delivery impossible. CB v. WHAT ARE THE EXCEPTIONS TO INDIVISIBILITY: 1. It was secured by REM. Pledge/mortgage may secure all sorts of valid. constructive delivery is allowed. Must be indorsed. If there was only partial release of the loan. Shares of stock not negotiable so no indorsement is required. Ex: If you have 100 mortgages securing corresponding portion of the loan. If you agree. there was payment of 100K. stamps and reg. The REM covered several (100) condominium units. or by misrepresenting himself to be the owner of the same. that the thing pledged be placed in the possession of the creditor.The downside is that you must again pay doc. unlike in the document with 100 mortgages. A promise to constitute a pledge or mortgage gives rise only to a personal action between the contracting parties. PROVISIONS APPLICABLE ONLY TO PLEDGE Article 2093. The contract of pledge or mortgage may secure all kinds of obligations. by offering in pledge or mortgage as unencumbered. Where each one of several thing guarantees a determinate portion of credit. Where there was failure of consideration. How? Cancel pledge/mortgage and constitute a new pledge/mortgage. for safety reasons. 2. Article 2094. CA. the same may be required. Article 2092. In addition to the requisites prescribed in article 2085. in order to constitute the contract of pledge. if the parties agree to allow partial discharge of the pledge/mortgage. All movables which are within commerce may be pledged.
unless there is a stipulation authorizing him to do so. Substantial breach under 1191 gives the injured party the right to resolve the obligation. Pledgor sell property to third person/s without notice to pledgee – sale is valid but transfer of ownership is suspended until pledgee consents. Red flags would be failure or inability of debtor to show the thing or the title to the thing. does not advise the pledgee of the same. Cayo IID 2002 PAGE 35 . Remedy of pledgor if pledgee deposits it with a third party without authority? The pledgor may demand extrajudicial deposit of the thing under 2104 or deposit with a third person/s in 2106. Incorporeal rights. can the pledgor demand resolution of the pledge agreement? Yes. The instrument proving the right pledged shall be delivered to the creditor. Article 2099. The pledgee is responsible for the acts of his agents or employees with respect to the thing pledged. If the pledgee deposits the thing with a third person without authorization. the thing pledged may be alienated by the pledgor or owner. and is liable for its loss or deterioration. it must be in a public instrument (notarized document). now if the creditor transfers possession. Article 2100. Article 2098. The creditor shall take care of the thing pledged with the diligence of a good father of a family. the creditor shall compensate what he receives with those which are owing him. The contract of pledge gives a right to the creditor to retain the thing in his possession or in that of a third person to whom it has been delivered. Article 2097. subject to the pledge.] Article 2102. or insofar as the amount may exceed that which is due. knowing the flaws of the thing pledged. income. dividends. but if none are owing him. and if negotiable. Unless there is a stipulation to the contrary. Why would the pledgee want to be informed – administrative purposes. shares of stock. With the consent of the pledgee. or interests. The pledgor has the same responsibility as a bailor in commodatum in the case under article 1951. Ex: pledgor pledges property to pledgee to secure a loan. It can be argued that the principal consideration was that the custodian be the pledgee. No requirement as to form but to affect third persons. The pledgee cannot deposit the thing pledged with a third person. in conformity with the provisions of this Code. The problem here is: how do third persons check if the thing is pledged when the thing isn’t represented by some sort of title which can be annotated? They can’t but they should exercise diligence. Article 2096.Article 2095. bills of lading. evidenced by negotiable instruments. [The pledgor who. warehouse receipts and similar documents may also be pledged. The ownership of the thing pledged is transmitted to the vendee or transferee as soon as the pledgee consents to the alienation. he has a right to the reimbursement of the expenses made for its preservation. shall be liable to the latter of the damages which he may suffer by reason thereof. but the latter shall continue in possession. it’s a principal breach. must be indorsed. the pledge shall extend to the interest and earnings of the right pledged. Pledge is in a public instrument. Article 2101. who gets property when obligation is paid. If the pledge earns or produces fruits. until the debt is paid. A pledge shall not take effect against third persons if a description of the thing pledged and the date of the pledge do not appear in a public instrument. bonds. he shall apply it to the principal.
he may require its deposit with a third person. the creditor can still recover the balance from the debtor. without the pledgee’s fault. When the preservation of the thing pledged requires its use. unless and until he has paid the debt and its interest. and without prejudice to the right of the pledgee under the provisions of the following article. Article 2103. the pledgor may demand its return. this looks important. without the fault of the pledgee. without delay. Though the pledgor cannot demand return of the thing unless the obligation is fulfilled. the debtor continues to be the owner thereof. even if the obligation is not due. If through the negligence or willful act of the pledgee. L. The proceeds of the auction shall be a security for the principal obligation in the same manner as the thing originally pledged. The creditor cannot use the thing pledged. If there are reasonable grounds to fear the destruction or impairment of the thing pledged. if the thing pledged is in danger of being lost or impaired through the pledgee’s willful act or negligence. Article 2105. B pledges a goat. unlike in foreclosure. Despite the pledgor’s right above. it must be used by the creditor but only for that purpose. their offspring shall pertain to the pledgor or owner of animals pledged. Article 2108. In 2108. If the period is for the benefit of the pledgee. If he misuses it. In this case. Here the benefit of the period is for the creditor. the proceeds of the sale shall be security for the debt. in the same situation. the pledgee may opt to sell the thing and keep the proceeds. with expenses in a proper case. the thing pledged is in danger of being lost or impaired. he may cause the same to be sold at a public sale. or defend it against a third person. provided he replaces it with another of the same kind and quality. impairment. the thing will continue with respect to the thing given. upon offering another thing in pledge. the owner may ask that it be judicially or extrajudicially deposited. If. but shall be subject to the pledge. L may then take the goat’s milk and offspring and compensate against what is owing him even if the obligation is not yet due. The pledgee is bound to advise the pledgor. if the cash value is less than the principal obligation. Ex: Lender lends Borrower money. if not due. without the authority of the owner. without the fault of the pledgee. The debtor cannot ask for the return of the thing pledged against the will of the creditor. the fruits just form part of the pledge. or diminution in value of the thing pledged. labo! Article 2104. Unless the thing pledged is expropriated. The creditor who receives the fruits should apply them to whatever amount is owing (obligations due and payable). there is danger of destruction. Nevertheless. If the thing is expropriated. payable upon demand. Cayo IID 2002 PAGE 36 . the pledgor can demand extrajudicial deposit. the pledgee’s right takes precedence over the pledgor’s. Article 2107. or should misuse the thing in any other way. he may compensate against the interest or the principal. the creditor may bring the actions which pertain to the owner of the thing pledged in order to recover it from. provided the latter is of the same kind as the former and not of inferior quality. If the thing is in danger of diminution or destruction.In case of a pledge of animals. the pledgor may demand the return of the thing. of any danger to the thing pledged. and if he should do so. as the case may be. Article 2106. upon due date. the pledgor may require that it be deposited with a third person. The creditor can only use the thing if he is authorized or its preservation requires use. To secure the loan. if there is no stipulation to the contrary.
This same presumption exists if the thing pledged is in the possession of a third person who has received it from the pledgor or owner after the constitution of the pledge. How is the public sale conducted? Default rule: Proceed before a Notary Public and ask him to conduct a notarial sale. The notary supervises the sale of the pledged property. the pledgee becoming a depositary. the presumption is that it was returned and extinction of the pledge. there is a prima facie presumption that the same has been returned by the pledgee. the property is in the possession of the pledgor. WHEN BORROWER RECEIVED THE LETTER. or demand immediate payment of the principal obligation. BORROWER PLEDGED HIS CAR TO LENDER. Is there a period required for notification? Cayo IID 2002 PAGE 37 . and if at the second auction there is no sale either. Article 2109. See Article 2111. If at the first auction the thing is not sold. ANY STIPULATION TO THE CONTRARY SHALL BE VOID. the thing is in the possession of the pledgor or owner. a second one with the same formalities shall be held. For this purpose. WHAT ARE THE FORMALITIES REQUIRED FOR THE NOTARIAL SALE? (1) the debt is due and unpaid. stating the amount for which the public sale is to be held. This is an instance where the debtor loses the benefit of the period: If the debtor dupes the creditor as to the quality of the thing. LENDER SPOTTED BORROWER WITH LENDER’S WIFE AND FELT VERY ANGRY AND JEALOUS. drafts the rules and notifies the debtor and the owner. as owner. nor the return of the thing pledged is necessary. CAN LENDER REFUSE TO RETURN THE CAR? No. he may either claim another thing in its stead. This sale shall be made at a public auction. may proceed before a Notary Public to the sale of the thing pledged. A statement in writing by the pledgee that he renounces or abandons the pledge is sufficient to extinguish the pledge. (2) the sale must be at a public auction. (3) there must be notice to the pledgor and owner. LENDER COMPOSED A LETTER RENOUNCING THE PLEDGE. WHILE DRIVING HOME. If the thing pledged is returned by the pledgee to the pledgor or owner. HE WENT TO LENDER’S HOUSE TO RECOVER THE CAR BUT LENDER REFUSED AND TOLD BORROWER TO PISS OFF. PROBLEM: TO SECURE HIS LOAN. and (4) the sale must be with the intervention of a notary public. HE USED THE CAR TO DRIVE TO THE POST OFFICE AND MAILED THE LETTER. If after the perfection of the pledge. the creditor may demand immediate payment or delivery of another security. stating the amount due. In this case he shall be obliged to give an acquittance for his entire claim. *Article 2111. alleging that he could have obtained a better price. OUT OF THE KINDNESS OF HIS HEART. Article 2112. and with notification to the debtor and the owner of the thing pledged in a proper case. the pledge is extinguished. UNLESS the owner holds it as agent of the pledgee. If the creditor is deceived on the substance or quality of the thing pledged. The creditor to whom the credit has not been satisfied in due time. If subsequent to the perfection of the pledge. the creditor may appropriate the thing pledged. neither the acceptance by the pledgor or owner.The pledgor can question the sale. Article 2110.
who is bidding alone. If the price of the sale is more than said amount. is. the pledgor or owner may bid. interest and expenses in a proper case. Article 2114. HOW DO YOU GUARD AGAINST THE SITUATION OF NOT BEING ABLE TO RECOVER THE DEFICIENCY IF YOU ARE THE PLEDGEE? Set a minimum bid (if this is actually allowed. Can it be a private sale? Ex: stocks pledged. according to JPSP. The sale of the thing pledged shall extinguish the principal obligation. if there were a period. the pledgor would be able to litigate and obtain an injunction. but that is his lookout. The obligation is extinguished when the pledge is sold regardless of whether the proceeds are less or more than the amount of the obligation. IN PLEDGE. Unlike in a mortgage. his bid shall be preferred over that of others. as far as the pledgor or owner is concerned. but his offer shall not be valid if he is the only bidder. The pledgee may also bid. But see the de Leon book under Article 2112. He shall. If any other bid is accepted. The stipulation giving the creditor the right to recover the deficiency is void. Article 2115. If the price of the sale is less. neither shall the creditor be entitled to recover the deficiency. but his offer shall not be valid if he is the only bidder because the law seeks to prevent fraud. See Article 2115. IN CASE OF NOTARIAL SALE. Before that date. The law wants to conserve the property in the owner. just sue for the entire obligation. the debtor shall not be entitled to the excess. he should have known a notarial sale was forthcoming. YOU CAN STIPULATE THAT THE DEBTOR WILL BE ENTITLED TO THE EXCESS BUT YOU CAN’T STIPULATE THAT THE CREDITOR WILL BE ALLOWED TO RECOVER DEFICIENCY. debtor already defaulted. All bids at the public auction shall offer to pay the purchase price at once. the pledgee is deemed to have been received the purchase price. The reason. there can be recovery of deficiency. PROBLEM: IN THE PLEDGE AGREEMENT. Pledgee can waive cash requirement. listed on the PSE and just coursed through a broker. JPSP says yes. THE PARTIES STIPULATED THAT. book says no) OR Instead of selling the thing. Yes – there is no express prohibition. The pledgor is allowed to bid and all things being equal. whether or not the proceeds of the sale are equal to the amount of the principal obligation. moreover. ARE THE STIPULATIONS VALID? The stipulation that the debtor shall be entitled to the excess is valid. At the public auction. Cayo IID 2002 PAGE 38 . The pledgee may also bid. Exception to pactum commissorium if the thing is not sold after two sales. THE PLEDGOR SHALL BE ENTITLED TO THE EXCESS AND THE PLEDGEE SHALL BE ENTITLED TO RECOVER THE DEFICIENCY. Fraud is possible if the parties had stipulated that the debtor shall be allowed to the excess and the creditor. unless it is otherwise agreed. Article 2113. the creditor may appropriate the thing and it shall be considered as full payment for the entire obligation. Notice can be given right before close of office the day preceding the sale. bids low. notwithstanding any stipulation to the contrary. have a better right if he should offer the same terms as the highest bidder.No particular period is required by law.
Article 2118. unless there is a stipulation to the contrary. then take the whole pledge and make $$$! In REM.” Probably not if the change in price is just a day-to-day fluctuation. pursuant to 2108? JPSP says: “Maybe but speculative.5M DEBT IS SECURED BY 2M WORTH OF SMC SHARES. to the pledgor. After the public auction. and articles 2077 to 2081. the debtor is entitled to the excess and the creditor is entitled to recover the deficiency. the thing pledged is a credit which has become due. Third party can be a buyer of the thing or someone with a junior lien. and deliver the surplus. stipulate that if the value goes below 1. DELIVERING THE SURPLUS TO THE DEBTOR. AND THE BORROWER DEFAULTS. If two or more things are pledged. The creditor can thus collect the amount due and compensate. PROBLEM: 1M IS SECURED BY A 700K MORTGAGE AND A 900K PLEDGE. He may demand the sale of only as many of the things as are necessary for the payment of the debt. Why would a third person with a junior lien want to pay the obligation? The property may be more valuable than the obligation and he may want his lien to become senior. in line with the ordinary diligence required of him. 1.OR Stipulate that if the value of the pledge goes under a certain amount.3M then the debtor will be obliged to pledge additional securities. Ex: 1M obligation. can you claim that the value of the pledge is diminishing and then choose to sell the stocks for 1. He shall apply the same to the payment of his claim. should there be any. The pledgee has the duty to collect any due credits. HOW WOULD YOU SELL? Sell all. IF YOU ARE THE PLEDGEE.4M. unlike in pledge. Any third person who has any right in or to the thing pledged may satisfy the principal obligation as soon as the latter becomes due and demandable. Under this article. You are not required to sell by piece. the pledgee may collect and receive the amount due. 1. PROBLEM: A 1.4M. Without such a stipulation. When the stocks go down top 1. IF YOU ARE THE LENDER. keeping the profits as security. can Article 2108 have the same effect? Ex: 1M obligation. If a credit which has been pledged becomes due before it is redeemed. Article 2117. the pledgee may choose which he will cause to be sold. If a third party secures an obligation by pledging his own movable property under the provisions of article 2085 he shall have the same rights as a guarantor under articles 2066 to 2070. Article 2116. as a default rule. The creditor cannot refuse payment by a third person WITH AN INTEREST in the thing pledged. Cayo IID 2002 PAGE 39 . Article 2120. then the debtor shall be obliged to pledge additional securities.5M worth of stocks pledged. This is to allow the debtor to take reasonable steps if he suspects that the sale was not honest. the pledgee shall promptly advise the pledgor or owner of the result thereof. WHICH SECURITY TO YOU GO AFTER FIRST? Go against the REM first. Pledgor can restrict only if there are two pledges securing the obligation.5M worth of stocks pledged. Article 2119.
2. With regard to pawnshops and other establishments. such as those referred to in articles 546. if any. the special laws and regulations concerning them shall be observed. However. BUT after sale. he did not How about any deficiency? accept the pledge voluntarily and the reason for prohibiting recovery is absent (the reason being that creditors should know not to lend more than what can be secured). In pledges by operation of law. which are engaged in making loans secured by pledges. 4. 1731. Article 2123. I think creditor will be entitled to recover because here. Pledgors are released from obligation if by some act of the creditor. Subrogation. are governed by the foregoing articles on the possession. Depositary may retain thing until paid for the deposit. and 1994. 5. Release in favor of one pledgor benefits all. the debtor may require the return of the thing. the provisions of this Title. Laborer’s wages are considered a lien on goods manufactured or work done. A thing under a pledge by operation of law may be sold only after demand of the amount for which the thing is retained. 3. Pledges created by operation of law. Article 2122. is returned to the pledgor: • • • • • Possessor in good faith may retain the thing on which he spent for necessary expenses until he is reimbursed. Cayo IID 2002 PAGE 40 . Article 2121. Pledgor may set up defenses inherent in the debt. the remainder of the sale price shall be delivered to the debtor. the remainder of the price of the sale shall be delivered to the obligor. If. Indemnity. the excess. and subsidiarily. Pledgor is released if creditor accepts property in payment of debt. care and sale of the thing as well as on the termination of the pledge. The public auction shall take place within one month after such demand.He is not prejudiced by any waiver of defense by the principal obligor. the creditor does not cause the public sale to be held within such period. after payment of the debt and expenses. Extension granted to debtor extinguishes pledge. 6. He who works on a movable may retain the same until paid for the work. 7. Agent may retain objects of agency until reimbursed by principal. The third party pledgor is entitled to: 1. The foregoing articles govern the following pledges by operation of law. there can be no subrogation. without just grounds.
Alienable rights imposed upon immovables Can you mortgage future property? Future property CANNOT be the object of a contract of mortgage. accessory. What are the characteristics of the contract of mortgage? Mortgage is a real. If the mortgagor delivers the property to the mortgagee. Voluntary – Agreed to between the parties or constituted by the will of the owner of the property 2. What is the subject matter of real mortgage 1. Immovables 2. However. One cannot constitute a mortgage on “any other property he might have now and those he might acquire in the Cayo IID 2002 PAGE 41 . plus some other contract. Who takes possession of the mortgaged property? As a general rule. Only the following property may be the object of a contract of mortgage: (1) Immovables. movables may be the object of a chattel mortgage.REAL MORTGAGE Art. What are the kinds of real mortgage? 1. Equitable – Lacks the proper formalities of mortgage but shows the intention of the parties to make the property as a security for a debt. Nevertheless. 2124. the consideration is the same as that of the principal contract. the mortgagor retains possession of the property mortgaged. (2) Alienable real rights in accordance with the laws. and subsidiary contract. A real estate mortgage is a contract whereby the debtor secures to the creditor the fulfillment of a principal obligation. specially subjecting to such security immovable property or real rights over immovable property in case the principal obligation is not complied with at the time stipulated. imposed upon immovables. What is the consideration in a contract of mortgage? Since mortgage is an accessory contract. it can still be a contract of mortgage. Mortgage (def). Legal – Required by law to be executed in favor of certain persons 3. it is not an essential requisite of the contract of mortgage that the property remains in the possession of the mortgagor.
If the instrument is not recorded. modification. transmission. 2125. 1358. This right may be exercised simultaneously with the action upon the contract. or extinguishment of real rights over immovable property… What are the requisites of real mortgage? 1. Art. 1357. Art. as in the acts and contracts enumerated in the following article. To prejudice third persons.” Remember that one of the essential requisites of mortgage is that the mortgagor should be the absolute owner of the thing mortgaged. the property mortgaged may be alienated for the payment to the creditor. But to affect third persons.future. in order that a mortgage may be validly constituted. The mortgagor must be the absolute owner of the thing mortgaged. This is because recording the document in the Registry of Property serves as notice to 3rd persons. In addition to the requisites stated in Article 2085. once the contract has been perfected. The following must appear in a public document: (1) Acts and contracts which have for their object the creation. This is similar to the requirement in pledge that the pledge be in a public document. 2. there is already a valid mortgage between the parties – mortgagor and mortgagee. the mortgage is nevertheless binding between the parties. The persons in whose favor the law establishes a mortgage have no other right than to demand the execution and the recording of the document in which the mortgage is formalized. He must have free disposal of the thing or otherwise be authorized to do so. the mortgage must be recorded in the Registry of Property. the contracting parties may compel each other to observe that form. If the law requires a document or other special form. But a stipulation which says that the mortgage covers future improvements upon real property already mortgaged is valid. Can there be an oral mortgage? Cayo IID 2002 PAGE 42 . This is because these future improvements are deemed included in the real property by accession. It must be constituted to secure a principal obligation. they are not separate from the real property already subject of the mortgage. 5. If the first four requisites are present. 4. Art. there is a need to comply with the fifth requisite: The document of mortgage must be recorded in the Registry of Property. When the principal obligation becomes due. 3. it is indispensable. that the document in which it appears be recorded in the Registry of Property.
there is already a mortgage between the parties. In this case. X can argue on two grounds: 1. Before you pay the registration fees. It need not be in writing in order to be enforceable since it is not covered by the Statute of Frauds. the mortgage will be annotated on the title. the mortgage is binding on third persons only with respect to the 100K debt. it becomes binding on third persons. Problem: Mortgagor mortgages a house and lot worth 500K to Mortgagee to secure a principal obligation of “100K and any and all future indebtedness. As long as the four essential requisites above are present. one party can compel the other party to observe the proper form. Mortgagor fails to pay both X and Mortgagee. Mortgagor owes another creditor. And the mortgagee cannot register the mortgage in the Registry of Property if it is an oral mortgage. Procedure: What happens when you enter into a contract of mortgage? Step 1: Execute the document of mortgage Step 2: Go to a notary public. After payment of the registration fees. Step 4: Go to the Office of the Register of Deeds and pay the registration fees. who will notarize the document. 1357 provides that if there is already a valid contract. or 1/5 of the house. so that the mortgagee can register the mortgage. Who has a better right to the house and lot – X or mortgagee? Mortgagee has a better right with respect only to 1/5 of the house and lot. Step 3: Pay the documentary stamp tax within the first five days of the succeeding month. the mortgagee can compel the mortgagor to execute a public document of mortgage. The total indebtedness of Mortgagor to Mortgagee eventually reaches 500K. there has to be a valid mortgage first. So his remedy is to invoke Art. Meanwhile. But the oral mortgage is not binding against third persons. 500K.” Therefore. That Mortgagee paid doc stamp taxes based only on the 100K debt. Once the previously oral mortgage is in a public document and is subsequently registered in the Registry of Property. Remember that 1357 is only for convenience. so that the mortgagee can then register it in the Registry of Property. The doc stamp tax is a percentage of the value of the property mortgaged. not on the succeeding 400K debt. On due date. Before you can invoke it. X is able to obtain a writ or attachment on the house and lot. Its purpose is to compel the mortgagor to execute a public document. and not to the “any and all future debts. Cayo IID 2002 PAGE 43 . It does not determine the validity or even the enforceability of the mortgage between the parties.As between the parties. The house and lot is his only property.” The mortgage is registered. 1357 and 1358. So he even cheated the government of its revenues in this case. YES. This is because the mortgage was registered only to the extent of 100K. the government will require you to update payment of realty taxes on the property. since there is already a valid mortgage between the parties. X.
It does not extinguish the title of the debtor. The mortgage directly and immediately subjects the property upon which it is imposed. What happens if the mortgage is void? If for some reason. at the time of the mortgage. the mortgagee is sure that the entire 500K loan is registered. the mortgage is void. the property is subjected to a lien. whoever the possessor may be. The mortgagor’s default does not operate to vest in the mortgagee the ownership of the encumbered property. the principal obligation subsists. he is under no obligation to look beyond the certificate. the 400K debt was non-existent. Besides. But this is costly. The mortgage deed will say that the principal obligation is 500K. How does mortgagee opt out of this problem? 1. Until the principal obligation is discharged. In guaranty. the property still remains subject to the fulfillment of the obligation secured by it. to the fulfillment of the obligation for whose security it was constituted. since the doc stamp tax will be based on the ceiling and not on the actual amount released. in mortgage. as long as it is registered. the mortgage deed remains as proof of the principal obligation. So if the mortgagor sells the mortgaged property. All subsequent purchasers must respect the mortgage. the mortgage follows the property wherever it goes and subsists even if the ownership changes. The action of the creditor is against the guarantor himself and not against his property. He can do a credit line arrangement in which he will give the debtor a ceiling up to which he can borrow. cession. It creates a real right which is inseparable from the property mortgaged. The mortgagee has a right to rely in good faith on what appears on the certificate of title of the mortgagor. or conveyance of property but only constitutes a lien thereon. The better solution is that the mortgagee should execute and register a new document each time he releases funds to the mortgagor/debtor. the property of the guarantor is not subjected to a lien.2. In the absence of anything to excite suspicion. even if the mortgage itself is void. 2126. The creditor would still have to sue the guarantor. The only right of the mortgagee is to foreclose the mortgage and sell the property to satisfy the obligation. Cayo IID 2002 PAGE 44 . X has a better right with respect to the 4/5 which was not registered. etc. It is enforceable against the whole world (provided it is registered). This way. 2. On the other hand. Art. Does the mortgagor lose his title to the property mortgaged? No. execute it. or even if it is not registered. but debtor has the choice of asking for a release of funds below this ceiling. obtain judgment. The mortgagor/debtor continues to be the owner. Therefore. Moreover. What is lost is only the right of the creditor to foreclose the mortgage in order to satisfy the principal obligation. A mortgage does not involve a transfer. if the purchaser knew that it was mortgaged.
especially where the property mortgaged is subject to deterioration (such as machinery and equipment). To exclude these things. once mortgagor acquires the second house and lot. JPSP example: In the mortgage deed. Art. 2127. accessions. the mortgage is valid with respect to both house and lot #1 and #2. install. Future property. amplifications and limitations established by law. until the latter is registered. Is this a valid mortgage? Between mortgagor and mortgagee. to the improvements. Examples: 1. and. so that it would be binding on third parties. growing fruits. 2. But. he can even mortgage it again to another mortgagor (junior lien/encumbrance). or it passes into the hands of a third person. Art. in whole or in part.Since the mortgagor retains ownership of the mortgaged property. 2128. and others that the mortgagor may acquire. and rents or income not yet received when the obligation becomes due. with the declarations. construct. as well as all buildings. the future improvements. and fruits of property already mortgaged are also covered by the mortgage. or in virtue of expropriation for public use. The mortgage credit may be alienated or assigned to a third person.” This is a valid stipulation. Mortgagor mortgages house and lot #1 and another house and lot which he will acquire next month. the mortgagee can apply the cash as payment for the obligation. as against third parties. with the formalities required by law. The mortgage deed contains a provision that “all property taken in exchange or replacement. This is because they are deemed to be part of the principal thing which was already existing at the time of the constitution of the mortgage. and to the amount of the indemnity granted or owing to the proprietor from the insurers of the property mortgaged. whether the estate remains in the possession of the mortgagor. machineries. attach. the mortgage is only valid with respect to the first house and lot but not to the second house and lot. The remedy of the mortgagee. Upon default. cannot be the subject matter of mortgage. What happens if the thing mortgaged is expropriated? The security becomes the cash given by the government as indemnity. The mortgage extends to the natural accessions. in themselves. there must be an express stipulation to that effect. The purpose of this stipulation is to maintain the value of the property mortgaged. equipment. is to compel the mortgagor to execute a public document evidencing the mortgage of the 2nd house and lot and to register it. But. The deed is registered. Cayo IID 2002 PAGE 45 . or use in its lumber concession shall immediately become subject to the mortgage.
the transferee must respect the mortgage because it is a real right. The alienation or assignment of the mortgage credit is valid even if it is not registered. which is the part of the principal obligation secured by the property sold to C. Example: A mortgaged his land worth P5M in favor of B to secure a debt of P6M. in whole or in part. he would want to know the type of person from whom he might have to collect the credit later on. It only applies to those in possession of the mortgaged property in the concept of owner. even if its ownership changes. Art. Registration is only necessary to affect third persons. 2130. Art. This is because the mortgage credit is a real right.) Art. B may foreclose the mortgage. Second. extent and consequences of a mortgage. both as to its constitution. any disposition of the mortgaged property by the mortgagor is a red flag that may indicate that the mortgagor/debtor may not be able to pay the debt later on (Because why is he suddenly disposing of his property? Maybe he doesn’t have money anymore. the creditor may demand from him the payment of the principal obligation. The mortgagee would want to regulate the disposition of the property by the mortgagor because first. C can go after A for reimbursement. which follows the property wherever it goes.The mortgage credit is a real right. A sold the land to C. Art. in the terms and with the formalities which the law establishes. However. When a mortgagor alienates/sells the mortgaged property to a third person. before the creditor can collect from the third person. The creditor may claim from a third person in possession of the mortgaged property. B may also choose to collect P5M (not P6M) from C. 2129. 2131. However. A stipulation forbidding the owner from alienating the immovable mortgaged shall be void. he must have made a demand on the debtor. B should demand payment of the P6M from A. C is not liable for the deficiency of P1M in the absence of a contrary stipulation. they may be alienated or assigned to third persons. A stipulation forbidding the owner from alienating the mortgaged property is void for being contrary to public policy because it is an undue impediment or interference on the transmission of property. modification and extinguishment. 2129 does not really apply to all third persons in possession of the property. If C pays B. Thus. real rights over immovables are also considered immovables in themselves. if the mortgagor alienates the property. A stipulation that requires the mortgagor to notify the mortgagee in writing before he sells the property is VALID. The assignee may then foreclose the mortgage in case of nonpayment of the principal obligation. the creditor may not collect the credit from that third person. and under property law. by the mortgagee who is the owner of the right. On due date. and the latter should have failed to pay. the payment of the part of the credit secured by the property which said third person possesses. The form. and as to the other matters not included in this Chapter shall be governed by the provisions of the Mortgage Law and of the Land Registration Law. Cayo IID 2002 PAGE 46 . If A fails to pay. This is not a prohibition but a mere regulation. If the possession by a third person is only as lessee.
FORECLOSURE The essence of a mortgage is that upon default. When confronted with a foreclosure problem… Cayo IID 2002 PAGE 47 . Can the foreigner take possession of the property upon default of the mortgagor? The foreigner can take possession of the mortgaged property upon default but only for the purpose of foreclosure and receivership in accordance with the prescribed judicial procedures. AND in no case exceeding five years. since foreigners are only prohibited from owning real property in the Philippines. The parties may also stipulate that the sale will be a private sale. However. You can only do extra-judicial foreclosure if the mortgage deed has a provision which gives the mortgagee the special power of attorney to sell the mortgaged property in accordance with Act 3135. But these are only default rules. the foreigner CANNOT foreclose extra-judicially. Mortgage to a Foreigner – RA 133 Can you mortgage to a foreigner? Yes. he can possess it as lessee. How do you foreclose? There are two types of foreclosure – judicial and extra-judicial foreclosure. he cannot bid or take part in any sale of the real property in case of foreclosure. What is foreclosure? It is the remedy available to the mortgagee by which he subjects the mortgaged property to the satisfaction of the obligation. It denotes the procedure adopted by the mortgagee to terminate the rights of the mortgagor on the property and includes the sale itself. The default rule is judicial foreclosure. the mortgagee can foreclose – he can sell the property and apply the proceeds of the sale to the payment of the principal obligation. Can the foreigner take possession of the property during the mortgage? Pursuant to the mortgage. not from being mortgagees. He can only foreclose judicially. Moreover. The situation is governed by RA 133. if the mortgagor defaults. But. the alien-mortgagee cannot take possession of the property during the mortgage.
If it is a bank. it’s automatically judicial foreclosure (Act 133). check if there’s a stipulation saying that there will be a private sale. it is an extra-judicial foreclosure. This is called the EQUITY OF REDEMPTION PERIOD. after trial. If there is no such stipulation. STEP 3: Within this 90 to 120 day period. the purchaser shall be entitled to the possession of the property. the mortgagor has the chance to pay the obligation to prevent his property from being sold. but there will be certain exceptions applicable only to banking institutions. If there is such a stipulation. RULES OF COURT STEP 1: The mortgagee should file a petition for judicial foreclosure in the court which has jurisdiction over the area where the property is situated STEP 2: The court will conduct a trial. Is the mortgagee a foreigner? If it’s a foreigner. and all the rights of the mortgagor with respect to the property are severed or terminated. the property can be sold at a private sale. now that you know whether it’s judicial or extra-judicial foreclosure. If there is no stipulation for extra-judicial foreclosure under Act 3135. if it’s an extra-judicial foreclosure. look for the following tell-tale signs: 1. If you find this stipulation. then there will be either judicial or extra-judicial foreclosure. it is a judicial foreclosure governed by Rule 68 of the Rules of Court. STEP 4: If mortgagor fails to pay within the 90-120 days given to him by the court. look at the parties. the equity of Cayo IID 2002 PAGE 48 . 3. the court finds merit in the petition. If the mortgagee is not a bank. Even after the lapse of the 90 to 120 day period. 2. let’s go through each of the processes… JUDICIAL FORECLOSURE UNDER RULE 68. look for a stipulation in the mortgage agreement which gives the mortgagee the special power of attorney to carry out the extrajudicial foreclosure in accordance with Act 3135. 2. Fourth. the governing law is Act 3135. Second. the extra-judicial foreclosure will be governed by Act 3135. the mortgagor can still redeem the property. provided in Section 47 of the General Banking Act. the property shall be sold to the highest bidder at public auction to satisfy the judgment. If.First. Therefore. so long as there has been no confirmation of the sale yet. After the confirmation of the sale. Who is foreclosing? 1. STEP 5: There will be a judicial confirmation of the sale. it will render judgment ordering the mortgagor/debtor to pay the obligation within a period not less than 90 nor more than 120 days from the finality of judgment. If the mortgagee is not a foreigner. Third. The equity of redemption period actually extends until the sale is confirmed.
STEP 6: The proceeds of the sale of the property will be disposed as follows: 1. the mortgagee DOES NOT get the excess (unlike in pledge). the creditor must foreclose in each and every jurisdiction where the property is located. If there is a deficiency. since the parties would need to hire lawyers. there is no need to file an action. In this case. the mortgagor does not have a right to redeem the property anymore. Cayo IID 2002 PAGE 49 . the excess will go back to the mortgagor. EXTRA-JUDICIAL FORECLOSURE UNDER ACT 3135 When is extra-judicial foreclosure proper? There must be a provision in the mortgage giving the mortgagee the special power of attorney to carry out the extra-judicial foreclosure under Act 3135. in judicial foreclosure. This is the general rule in judicial foreclosures – there is no right of redemption after the sale is confirmed. The junior encumbrances will be satisfied 4. So if several properties located in different provinces are mortgaged to secure one principal obligation. Where should the sale be made? The sale can only be made in the province where the property is situated. IMPORTANT: After the confirmation of the sale. Moreover. since he can file all sorts of motions in court to prevent the sale. This is unlike the rule in pledge. This is also unlike the rule in extra-judicial foreclosure where the mortgagee must go to court and file another action for the collection of the deficiency. In such a case. where the pledgee cannot collect any deficiency. the mortgagee can ask for a DEFICIENCY JUDGMENT which can be imposed on other property of the mortgagor. The mortgagee just has to file a motion in court for the deficiency judgment. If there is still an excess. there is still a right of redemption within one year from the registration of the sale.redemption can be considered as the right of the mortgagor to redeem the property BEFORE the confirmation of the sale. In mortgage. the parties have very little control over the sale because there is court intervention. the costs of the sale will be deducted from the price at which the property was sold 2. Why should you stay away from judicial foreclosure? Judicial foreclosure is costly. The exception to this rule is when the judicial foreclosure is done by a BANK. First. The amount of the principal obligation and interest will be deducted 3. Judicial foreclosure is also more susceptible to stalling/dilatory tactics by the mortgagor.
publication for three consecutive weeks is completed within 11 days. In this case. And unlike in pledge. Therefore. This is because there is a right to redeem in extra-judicial foreclosure. unlike in a guaranty. Posting in at least 3 public places 20 days before the sale – usually in the Sheriff’s office. having defaulted in the principal obligation. the sale is still valid. The notice should contain the description of the property to be sold. There is no need for personal notice to the mortgagor. the justice or auxiliary justice of the peace of the municipality. This is because the mortgagor. 2. time. but which nobody consults for the purpose of checking if their mortgaged property is about to be foreclosed. the better the chances of the mortgagor/debtor to redeem the property. which is a Friday. the Assessor’s office. once a week for at least three consecutive weeks if the value of the property exceeds P400 This need not be done within a span of 21 days. the lower the price at which it is sold. should expect that a foreclosure is forthcoming. which is also a Monday. and place of the sale. If you’re the mortgagee. even if the mortgagee/creditor is the sole bidder.What is the procedure? STEP 1: File a complaint for extra-judicial foreclosure with the Executive Judge STEP 2: Notice of the sale There are two kinds of notices required: 1. date. Publication in a newspaper of general circulation. should expect that a foreclosure is forthcoming. and the Register of Deeds. or of a notary public of the municipality. Even the mortgagee/creditor may bid. having defaulted in the principal obligation. you should publish it in Abante. and the principal obligation to be satisfied by the sale of the mortgaged property. you would want to surprise the mortgagor so the he cannot employ dilatory tactics such as getting an injunction in order to delay the foreclosure. For example. you can publish on August 30. which is a Monday. Who may bid: Anyone may bid at the sale. If you’re nasty. which is a newspaper of general circulation. Can the parties stipulate a minimum price at which the property shall be sold? Cayo IID 2002 PAGE 50 . unless there are exceptions stipulated in the mortgage deed. STEP 3: Public Auction Time for conducting the public sale: Between 9 am to 4 pm Manner of conducting the sale: The sale should be under the direction of the sheriff of the province. who shall be compensated with FIVE PESOS for each day of actual work performed (wow $$$). This is because the mortgagor. and then on September 9. then on September 2.
Sec 47 of the General Banking Law provides that the purchaser shall immediately have the right to take possession of the property upon confirmation of the sale. STEP 4: Possession of the Property Upon foreclosure. It will even make it easier for him to redeem it if it is sold at a low price. he may file a petition in court to gain possession. it goes to the mortgagor. The bond will answer for any loss to the mortgagor if it is later found that he was not in default in the mortgage obligation or that the conduct of the sale violated Act 3135. he will retain possession during the redemption period (one year from the date of the sale). Upon approval of the bond. However. because the property must be sold to the highest bidder. if the winning bidder already wants possession of the property. He must give a bond equivalent to the rent for the use of the property for 12 months. STEP 5: Redemption Cayo IID 2002 PAGE 51 . Remedy of the Mortgagor If the winning bidder is able to obtain the writ of possession even before the expiration of the one-year period. What is the effect of inadequacy of the price at which the property is sold at auction? If there is a right to redeem. Exception to this rule: If the party foreclosing is a BANK. If there is still an excess.No. Parties cannot. if the mortgagor is in possession of the property. inadequacy of price is not material because the debtor may reacquire the property. The petition must be filed within 30 days from the grant of the writ of possession. What happens if there is a deficiency? The mortgagee must go to court and file an action to collect the deficiency. The mortgagor can argue that the stipulation should be binding on the mortgagee on the principle of estoppel. the court will issue a writ of possession in favor of the purchaser. He may file an action for a deficiency judgment even during the period of redemption. However. this rule may not apply where the purchaser happens to be the creditor or mortgagee himself. contravene the law. What happens if there is an excess? The excess should first be applied to satisfy the junior liens and encumbrances on the property. Mere inadequacy of price will not be sufficient to set aside the sale unless the price is so inadequate as to shock the conscience. the mortgagor may petition that the sale be set aside and the writ of possession be cancelled on the ground that he was not in default or that the sale was not made in accordance with Act 3135. by agreement.
or any judicial creditor or judgment creditor of the debtor. In this case. JPSP says interest is at 2% per month). Who may redeem? The debtor. Exception: If the mortgagee foreclosing is a BANK. What is the difference between the RIGHT OF REDEMPTION and EQUITY OF REDEMPTION? The right of redemption is the right of the mortgagor to redeem the mortgaged property within a certain period (in most cases. within 1 year) AFTER the sale of the property in satisfaction of the mortgage debt. under Sec 47 of the General Banking Law. He may exercise the right by paying off the debt secured by the first mortgage. Later. equity of redemption is the right of the mortgagor in a judicial foreclosure to pay the amount of his obligation BEFORE the confirmation of the sale of the mortgaged property. Cayo IID 2002 PAGE 52 . On the other hand. except when the mortgagee foreclosing is a bank. Example: Mortgagor mortgaged a house and lot to A. the purchaser has the absolute right to a writ of possession. It is not available in judicial foreclosures. the juridical person shall have the right to redeem the property BEFORE the registration of the certificate of sale but NOT EXCEEDING 90 DAYS FROM THE DATE OF THE FORECLOSURE. What happens if the debtor/mortgagor fails to redeem the property within the prescribed period? If the debtor/mortgagor fails to redeem the property within the prescribed period. the only right that B as second mortgagee has is the right to redeem. the mortgagor loses his right over the property. It is available to the mortgagor only when the mortgage is foreclosed extrajudicially.The debtor has the right to redeem the property sold within one year from the date of the sale. citing Rule 39 Section 28 of the Rules of Court. the mortgagor should pay the amount of the ORIGINAL OBLIGATION (not the purchase price) plus INTEREST AT THE ORIGINAL RATE stipulated in the mortgage contract plus all COSTS and expenses incurred by the bank from the sale of the property. or any person having a junior encumbrance or lien on the property may exercise the right of redemption. From then on. Exception: If the mortgagee foreclosing is a BANK and the mortgagor is a JURIDICAL PERSON. upon the sale of the property to A. reckoned from date of execution of the certificate of sale since it is only from that date that the sale takes effect as a conveyance. B’s exercise of Mortgagor’s equity of redemption is equivalent to foreclosure of the junior mortgage. Mortgagor also mortgaged it to B. A foreclosed the mortgage and bought the house and lot at the auction. How much should the one exercising the right of redemption pay? The mortgagor (or whoever is redeeming the property) should pay the PURCHASE PRICE of the property (not the amount of the original obligation anymore) plus INTEREST OF 1% PER MONTH (this is according to De Leon. his successors in interest.
Can the right of redemption be waived by the mortgagor in advance? It depends if there is a fair exchange of value and information between the parties. he does not really recover property since he does not lose ownership until after the expiration of the redemption period. He merely frees it of the encumbrance created by the mortgage. The bank then sold the property to Y for P1. What happens if the mortgagor sells the property to a third person within the redemption period? The third person. in buying the property. A different rule would make it easy for the buyer at the foreclosure sale to render the right of redemption nugatory simply by making a conveyance of the property for an amount beyond the capacity of the mortgagor to pay. When the debtor/mortgagor fails to redeem within the period for redemption. At the sale. this waiver is valid because there is a fair exchange of value. He should pay only P1M .5M. is actually buying not the property itself but the right to redeem the property and the right to possess it within the redemption period. this is the exception to the general rule that the mortgagor should pay the purchase price and 1% interest per month). If X wants to redeem the property. What is the effect of the timely exercise of the right of redemption? If the debtor/mortgagor is able to exercise the right of redemption on time. The mortgage was foreclosed. to whom should he pay and how much? X should pay to the Bank. But if the mortgagor is a businessman who waives the right to redeem in exchange for lower interest rates. If the mortgagor is a farmer who mortgages his parcel of land and he waives the right to redeem. X mortgaged property to a Bank to secure a P1M loan at 17% interest. the property was sold to the Bank as the highest bidder for P800K. the purchaser’s right becomes final. he can later argue that the waiver was not valid for being contrary to the public policy of preserving the property in the hands of the owner. even if the property is subsequently sold to a third party.Title to the property sold under a mortgage foreclosure remains with the mortgagor until the expiration of the redemption period. SUMMARY OF EXCEPTIONS UNDER SECTION 47 OF THE GENERAL BANKING LAW OF 2000 Cayo IID 2002 PAGE 53 . plus costs (Sec 47 General Banking Law: Remember. Y would then have a right to seek reimbursement from the Bank.the amount of the principal obligation plus interest at 17%. The right of redemption may be exercised by the mortgagee under the same terms. The right of the purchaser at the foreclosure sale is merely inchoate or contingent until after the period of redemption has expired without the right being exercised.
If the purchaser wishes to have possession within the redemption period. If the party foreclosing extrajudicially is a bank. applicable only to banks: 1. is followed. In judicial foreclosures. the petitioner must file a bond fixed by the court to satisfy whatever damage the bank may suffer by the injunction. the redemption price is the purchase price plus interest at 1% (or 2%?) per month. 5. the mortgagor may redeem the property after it is sold within one year from the execution of the certificate of sale. Upon confirmation of the sale. as the case may be. the redemption price consists of: a. There is no such provision in the case of ordinary extra-judicial foreclosure. whether the party redeeming is a natural or juridical person. the purchaser automatically has the right to take possession after the confirmation of the sale. In extra-judicial foreclosure by a bank. 2. plus costs of the sale incurred by the bank 3. the same rule as above is applicable to natural persons. there is still a right to redeem As a general rule. In extra-judicial foreclosure by a bank. he must file a petition for the issuance of a writ of possession with a corresponding bond. Redemption Price In ordinary extra-judicial foreclosure. the amount of the mortgage obligation b. BUT. the mortgagor retains possession of the property within the redemption period. Automatic Right of Possession In ordinary extra-judicial foreclosure. it must be BEFORE the registration of the sale Cayo IID 2002 PAGE 54 . However. juridical persons may redeem the property subject only to the following conditions: a. the mortgagor shall have a right to redeem within one year from the sale. Period of Redemption for Juridical Persons In ordinary extra-judicial foreclosure. 4. the same procedure as in judicial or extrajudicial foreclosure. plus the interest on the loan at the rate stipulated in the mortgage contract c. But if the mortgagor foreclosing judicially is a bank. There is no distinction. Injunction If anybody wants to enjoin the conduct of foreclosure proceedings instituted by a bank. the following are the exceptions to the general rules.When the party foreclosing the mortgage is a BANK. there is no right of redemption in judicial foreclosure. the mortgagor cannot redeem the property anymore.
When the second mortgagee exercises the equity of redemption by paying the obligation of the mortgagor/debtor. If the original debtor fails to pay within this period. before the sale is effected. the effect should be like payment of an obligation by a third person. The following are the rights of a junior mortgagee: 1. JPSP says that the junior mortgagee exercising the right to redeem should follow Act 3135 – he should pay the price at which the property was sold. you can also foreclose. De Leon says that he should pay the amount of the original obligation. not the property (since you cannot do that because the right of the first mortgagee is superior). the second mortgagee merely becomes subrogated in the right of the first mortgagee to foreclose the mortgage. But according to the Civil Code rules on payment (oblicon). The junior mortgagee may satisfy the obligation of the mortgagor to prevent the sale of the property. This interpretation is according to Section 28 Rule 39 of the Rules of Court. the excess should be applied to the payment of the obligation to the second mortgagee. but the Cayo IID 2002 PAGE 55 . What happens to the ownership of the property when the second mortgagee exercises the right of redemption? There are two interpretations – one under the Rules of Court and another under the Civil Code. the junior mortgagee may exercise the equity of redemption vested in the mortgagor. 2. the mortgagor/debtor has 60 days to reimburse the second mortgagee what he paid. ownership will be consolidated in the second mortgagee who paid. When an extra-judicial sale is made. 3. the junior mortgagee may exercise the mortgagor’s right to redeem within one year from the sale. If you’re the second mortgagee. If the property is sold for more than the amount of the obligation to the first mortgagee. the second mortgage is extinguished. it must not be later than 90 days from the date of the sale EFFECTS ON THE JUNIOR MORTGAGE What happens if there was a second mortgage constituted on the property that was foreclosed? If the property was mortgaged a second time.b. The first mortgagor has the right to foreclose the mortgage upon default by the debtor. in which case. But if there is no excess. and. the second mortgage is subordinate to the first mortgage. If the first mortgagee forecloses judicially.
2140 of the Civil Code that applies now. 3. What is chattel mortgage? Chattel mortgage is the contract by virtue of which personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation. If the movable. 2140. If the first four requisites are present. What are the characteristics of the contract of chattel mortgage? 1. there is already a valid mortgage between the parties – mortgagor and mortgagee. What is the subject matter of chattel mortgage? The subject matter of chattel mortgage is personal or movable property. the property mortgaged may be alienated for the payment to the creditor. This is so that you would be the only one who can exercise it when the proper time comes. It must be constituted to secure a principal obligation. This definition under the Chattel Mortgage Law is no longer applicable. the mortgage must be recorded in the Chattel Mortgage Registry. It is an accessory contract because it secures performance of a principal obligation 2. 2. It is a unilateral contract because it produces only obligations on the part of the creditor to free the thing from the encumbrance on fulfillment of the obligation. He must have free disposal of the thing or otherwise be authorized to do so.right of redemption instead. personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation. What are the requisites for a valid chattel mortgage? 1. is delivered to the creditor or a third person. To prejudice third persons. The mortgagor must be the absolute owner of the thing mortgaged. When the principal obligation becomes due. 4. 5. the contract is a pledge and not a chattel mortgage. By a chattel mortgage. CHATTEL MORTGAGE Art. It is the definition under Art. Cayo IID 2002 PAGE 56 . It is a formal contract because it requires registration in the Chattel Mortgage Register for its validity (but only against third persons) 3. instead of being recorded.
2141. This is similar to the requirement in pledge that the pledge be in a public document and the requirement in Real Estate Mortgage that it must be recorded in the Registry of Property. it is still valid and binding as between the parties. The requirement of registration is not for validity but only for binding third parties. The provisions of this Code on pledge. insofar as they are not in conflict with the Chattel Mortgage Law. THE CHATTEL MORTGAGE LAW How do you constitute a chattel mortgage? To constitute a chattel mortgage. However. there is a need to comply with the fifth requisite: The document of mortgage must be recorded in the Chattel Mortgage Registry. shall be applicable to chattel mortgage. notwithstanding any contrary stipulation Art. Note that unlike in pledge. Cayo IID 2002 PAGE 57 .But to affect third persons. if the chattel mortgage is not registered. public document is enough to bind third persons Governed by Article 2112 of the Civil Code Excess goes to the pledgee/creditor unless otherwise stipulated Creditor/pledgee is not entitled to recover any deficiency after the property is sold. the parties must register the personal property mortgaged in the Chattel Mortgage Register as security for the performance of an obligation. Registration gives the mortgagee symbolic possession. This is because recording the document in the Chattel Mortgage Registry serves as notice to 3rd persons. DISTINCTIONS BETWEEN CHATTEL MORTGAGE AND PLEDGE DELIVERY OF THE PERSONAL PROPERTY REGISTRATION IN THE REGISTRY OF PROPERTY PROCEDURE FOR SALE RIGHT TO EXCESS OF PROCEEDS OF SALE RIGHT TO RECOVER DEFICIENCY CHATTEL MORTGAGE Not necessary Necessary for validity of the chattel mortgage against third persons Governed by Section 14 of the Chattel Mortgage Law Excess goes to the debtor/mortgagor Creditor/mortgagee can recover deficiency from the debtor/mortgagor. What is the effect of registration? The registration of the chattel mortgage creates a real right or lien which follows the personal property wherever it goes. there is no need for actual delivery of the personal property to the mortgagee. except if covered by Recto Law PLEDGE Delivery is necessary for validity of the pledge Not necessary.
and now in the possession of said mortgagor. and one not entered into for the purpose of fraud. and for no other purpose. The conditions of this obligation are such that if the mortgagor. to wit: A PAIR OF SKY BLUE NIKE PRESTO SNEAKERS.What is the form required for a chattel mortgage? According to Sec. Executed at the municipality of Taytay in the Province of Rizal this Fifth day of October 2002. JPSP might ask us to make one in the exam. SIZE 3XS This mortgage is given as security for the payment to the said Anna del Castillo. mortgagor. the parties who signed the foregoing affidavit and made oath to the truth thereof before me. Lumabas sa past exam] We severally swear that the foregoing mortgage is made for the purpose of securing the obligation specified in the conditions thereof. then this obligation shall be null and void. Province of Rizal Philippines. and that the same is a just and valid obligation. his heirs. Helen Arevalo FORM OF OATH (affidavit of good faith) [Tip: know the contents of an affidavit of good faith. Xilca Alvarez. of the sum of fifty pesos. or administrators shall well and truly perform the full obligation above stated according to the terms thereof. and Helen Arevalo. Xilca Alvarez Sgd. personally appeared Sheryl Tanquilut. Sheryl Tanquilut . a resident of municipality of Taytay. 5 of the Chattel Mortgage Law. mortgagee. Cayo IID 2002 PAGE 58 Sgd. the following form should be sufficient: FORM OF CHATTEL MORTGAGE AND AFFIDAVIT This mortgage made this Fifth day of October 2002 by Sheryl Tanquilut. Province of Rizal Philippines. mortgagee. FORM OF CERTIFICATE OF OATH In the Province of Rizal. In the presence of: Sgd. executors. with interest thereon at the rate of twenty-five per centum per annum due on 25 December 2002. witnesseth: That the said mortgagor hereby conveys and mortgages to the said mortgagee all of the following-described personal property situated in the municipality of Taytay Province of Rizal. to Anna del Castillo a resident of the municipality of Cainta.
Sgd. Bhoy-B Notary public Cayo IID 2002 PAGE 59 .
the mortgagor b. The SC came up with this exception in order not to hamper the circulation of capital in the industry. What happens when the mortgagor pays the obligation? If the mortgagor pays the obligation. you cannot mortgage future property. such as creditors and subsequent encumbrancers. Therefore. the inventory of retail stores can be the subject of chattel mortgage. he gets a discharge from the mortgagee so that he can then cancel the lien annotated on the title and in the Chattel Mortgage Registry. a subsequent attaching creditor If an attaching creditor redeems. What happens when the mortgagor defaults on the obligation? 1. This is because the after-acquired property is actually in renewal or in replenishment of goods on hand when the mortgage was executed.What happens if there is no affidavit of good faith? The mortgage is still valid between the parties. the following persons may redeem the property before it is sold. but it will not bind third persons. What the parties should do is to execute a new document/ deed of chattel mortgage to cover the newly contracted obligation. You can only constitute a chattel mortgage to secure debts or obligations that are existing at the time the mortgage is constituted. it is void. But as an exception to this rule. The affidavit of good faith executed by the mortgagor states that the mortgage is constituted to secure the obligation specified therein and for no other purpose. If there is no affidavit of good faith. they may be acquired by the mortgagor after the mortgage is constituted. you cannot mortgage property that you do not own at the time of the constitution of the mortgage. Can you constitute a chattel mortgage to secure a future obligation or “a current obligation plus any and all obligations hereinafter contracted by the mortgagor in favor of the mortgagee”? No. He can foreclose the mortgage. Can you mortgage future property? Section 7 of the Chattel Mortgage Law provides that as a general rule. If it is constituted to secure an obligation that is not yet existent. Cayo IID 2002 PAGE 60 . he is subrogated to the rights of the mortgagor. by paying the amount of the obligation plus costs and expenses incurred from the breach: a. Right of Redemption In case of default. the mortgage will not be preferred as against these third persons. even if technically. a subsequent mortgagee c.
shall be given to the mortgagor Can the mortgagee recover any deficiency after the sale of the property? Unlike in pledge. If there is no stipulation. Foreclosure The parties can stipulate for a private sale upon default. There is no maximum time period for holding the sale. because he can sell it for more than 70K and realize more than the amount of the principal obligation. But if. and d.But once the property is sold at auction. the only notice requirement is posting at two or more public places in the municipality and personal notice to the mortgagor and junior mortgagees at least ten days before the date of the sale (no publication). if any. The procedure is the same as that for extra-judicial foreclosure of a real estate mortgage. the creditor can still file an action for recovery of any deficiency in case the proceeds of the sale do not satisfy the entire obligation. PROBLEMS ON REAL AND CHATTEL MORTGAGE Mortgagor mortgaged property worth 120K to secure a 100K loan. Costs and expenses of the sale b. The proceeds of the sale will be applied as follows: a. Claims of persons holding subsequent mortgages in their order. Payment of the obligation secured by the mortgage c. the applicable rule is Section 14 of the Chattel Mortgage Law. unless the situation is covered by the Recto Law. in the example above. Should mortgagor redeem the property? Yes. If the debtor/mortgagor refuses to surrender the property. Mortgagee foreclosed. In chattel mortgage. the mortgagor has creditors running after him for debts worth 300K. This is a minimum grace period given to the mortgagor to redeem the property before it is sold at auction. the creditor should file an action for replevin to take possession or for judicial foreclosure. The balance. the creditor/mortgagee can cause the property to be sold at public auction thirty days after default. should he redeem? Cayo IID 2002 PAGE 61 . 2. Mortgagor defaulted. The property was sold to X for 70K. there can be no redemption anymore. According to Section 14. Right of Mortgagee to Possession If the creditor/mortgagee wants to foreclose upon default. he has the implied right to take the mortgaged property. 3. except for the notice requirements.
2. Lender will re-convey the shares of stock to Borrower. But if the parties don’t want any problem. JPSP thinks that if there’s default. but here are the considerations: 1. he may demand the reconveyance of the property to him. Borrower offers the following securities to Lender: (1) a GUARANTY by X who is worth P100M (2) a PLEDGE of shares of stock worth P10M (3) a REAL ESTATE MORTGAGE worth P15M Which one should Lender choose? It really depends on the circumstances. If he chooses the pledge. Borrower executes a deed of assignment by way of security over the shares of stock in favor of Lender in order to secure payment of the loan. which is probably why the Supreme Court has characterized this type of transaction as a pledge instead. and he can get the excess in case the shares of stock are sold for more than P10M. Insurance Company – though in some cases. It’s not really a pledge because there is an absolute conveyance of ownership by the supposed pledgor in favor of the pledgee. Borrower borrows P1M from Lender. take note that they would be governed.No. he spends 70K in order to re-acquire property. Cayo IID 2002 PAGE 62 . it is good only if he is sure that the guarantor will pay. not by the Civil Code provisions on guaranty. 1454 of the Civil Code provides that if an absolute conveyance of property is made in order to secure the performance of an obligation of the grantor toward the grantee. 1454 does not cover this situation. It is stipulated that upon payment of the loan by Borrower. Art. What happens if there’s default? Art. it is easier to foreclose. If he chooses the guaranty. persons. a Bank – in the form of a bank guaranty through a letter of credit c. ownership will be consolidated in the lender/trustee. which he may thereafter lose again to his other creditors. If the guarantor is any of the following. a TRUST by virtue of law is established. he should not redeem. there’s no right to foreclose). What is this arrangement? This can either be a PLEDGE or an IMPLIED TRUST. Borrower borrows P10M from Lender. it is also hard to collect from an insurance company (also. If he redeems. But the Supreme Court has treated this in several cases as a pledge. the guaranty would be a good choice: a. the Government – because it is never insolvent b. JPSP likes the implied trust theory better because there is a statutory basis. but by the Insurance Code). there is no need to foreclose (actually. If the fulfillment of the obligation is offered by the grantor when it becomes due. If it’s a trust. they should stipulate the precise effect of default.
What is antichresis? Antichresis is a contract by which the creditor acquires the right to receive the fruits of an immovable belonging to the debtor. the Lender can then go after the Guarantor for the deficiency. he cannot proceed against the guarantor without foreclosing the pledge first. The shares can be sold at an ordinary execution sale. he should attach the property pledged. this might be a good choice since it can probably be sold at a good price right away. he gets to keep the excess – resulting in an upside of P6M. After the execution of the judgment on the shares. On the other hand. The loan is secured by a guaranty by X. Cayo IID 2002 PAGE 63 . 2. When judgment in his favor is rendered. If it’s property at a prime spot in Makati. 3. not as a pledgor. which he cannot collect anymore. the Lender may have a very difficult time selling it. who is worth P100M. Then get a deficiency judgment for the remaining P2M. The Guarantor is not yet an option since he has the benefit of excussion. what is the best way for Lender to proceed? 1. In the case of the real estate mortgage. he can then execute it against the attached shares. he will have a deficiency of P2M. In this way. Then. and a pledge worth P8M. By the contract of antichresis the creditor acquires the right to receive the fruits of an immovable of his debtor. If Borrower defaults. Borrower borrows P10M from Lender. 2132. the shares will be taken out of the context of the pledge. if owing. The Lender must first go through steps 1 and 2 and other remedies before running after X. not a foreclosure sale. ANTICHRESIS Art. with the obligation to apply them to the payment of the interest. for collection of the debt. 3. and any deficiency in the sale can still be recovered by the lender. Foreclose the real estate mortgage first. and thereafter to the principal of his credit. How should the Lender proceed in case of default by Borrower? If Lender forecloses the pledge. with the obligation to apply them to the payment of the interest. Borrower borrows P10M from Lender. The loan is secured by a pledge worth P8M and a guaranty by X. So what should he do? He should sue Borrower in his capacity as debtor. Then. But if it’s located in the boondocks. it depends on how easy it would be to dispose of the property. a real estate mortgage worth P8M. foreclose the pledge because in pledge. if owing.But the disadvantage of choosing the guaranty is that the guarantor who is worth P100M can afford to hire good lawyers who can stall the Lender’s claim. and thereafter to the principal of his credit.
What is the nature of the contract? Cayo IID 2002 PAGE 64 . What are the differences between antichresis and real mortgage? ANTICHRESIS Property is delivered to the creditor Creditor acquires only the right to receive the fruits of the property. it is required in order that the creditor may receive the fruits. antichresis gives a real right if it is registered in the Registry of Property. Is delivery of the property to the creditor required? Delivery is not required for the validity of the contract itself. parties must stipulate otherwise Expressly stipulated that the creditor shall apply the fruits to the payment of interest. Is it essential for the contract to have a stipulation for interest in order to have an accessory contract of antichresis? No. giving B the power to administer it and harvest the coconuts. Accessory – It secures the performance of a principal obligation. Formal Contract – It must be in specified form to be valid (in writing). If the parties do not want all of the fruits to be subject to the antichresis. however.What are the characteristics of antichresis? 1. Example: A borrowed P1M from B. believes that it is an independent contract. Does antichresis apply to all of the fruits of the immovable concerned? GENERAL RULE: The general rule is that the contract of antichresis covers ALL the fruits of the encumbered property. Like pledge and mortgage. It is not essential to the contract of antichresis that the loan that it guarantees should have interest. To secure the loan. There is nothing in the law that says that antichresis can only guarantee interestbearing loans. but mortgage creates a real right over the property which is enforceable against the world Creditor has no obligation to pay taxes and charges No obligation on the part of the mortgagee to apply the fruits to interest and principal Antichresis and real mortgage are similar in that the subject matter is real property. A delivered a parcel of land with coconut trees to B. 2. if owing. Manresa. and thereafter to the principal REAL MORTGAGE Debtor usually retains possession of the property Creditor has no right to receive the fruits. not a real right General rule is that creditor must pay the taxes and charges upon the estate. they must STIPULATE otherwise. BUT.
Example: The property subject of the contract of antichresis has mango trees. if owing. the creditor must base the value of the fruits on their market value at the time of the application. Art. The sums spent for the purposes stated in this article shall be deducted from the fruits. not antichresis. is obliged to pay the taxes and charges upon the estate. If the amount of taxes paid by the debtor is enough to satisfy the principal obligation. 2135. is to apply the fruits to the payment of interest. Pay the taxes and charges upon the estate – If the creditor does not pay the taxes. Cayo IID 2002 PAGE 65 . then the loan and the antichresis are extinguished. 2134. The actual market value of the fruits at the time of the application thereof to the interest and principal shall be the measure of such application. The requirement that it be in writing is necessary not merely to bind third persons but to make the contract valid. one kilo of mangoes costs P50/kilo. when mangoes are in season. If interest is due in May. Art. he is required by law to pay indemnity for damages to the debtor. otherwise. He is also bound to bear the expenses necessary for its preservation and repair. If the debtor pays the taxes on the property which the creditor should have paid. But even if the antichresis is void. having been given possession of the property. he should compute at the price of P35/kilo. unless there is a stipulation to the contrary. When it is time to apply the fruits to the payment of the interest or the principal. If this form is not followed. If interest is due in January. the principal obligation is still valid.Answer: The contract is one of mortgage. What if the creditor does not want to pay the taxes and charges? They must so stipulate in their agreement OR see the next article. 2133. In January. one kilo costs 25/kilo. Is there a form required for the contract of antichresis? Yes. Art. In order for it to be a contract of antichresis. to the principal. But in May. The creditor. The amount of the principal and of the interest shall be specified in writing. What are the obligations of the creditor under the contract of antichresis? 1. the amount is to be applied to the payment of the debt. the contract of antichresis shall be void. the contract of antichresis is VOID. and thereafter. it must be expressly agreed between creditor and debtor that the creditor. The contract must state the amount of the principal and the interest IN WRITING. the creditor must return the property to the debtor. the creditor must apply the fruits to the payment of interest based on the price of P50/kilo.
Is there an exception? Yes. This is because the contract of antichresis covers only the right to receive the fruits from the estate. The debtor cannot reacquire the enjoyment of the immovable without first having totally paid what he owes the creditor. Any stipulation to the contrary shall be void. Bring an action for specific performance. But this has the effect of extinguishing the contract of antichresis. But the creditor may petition the court for the payment of the debt or the sale of the real property. the creditor may compel the debtor to get the property back. Every stipulation to the contrary shall be void. if owing. this is pactum commisorium. The antichretic creditor possesses the property merely as a holder. and any stipulation to the contrary shall be void. Petition for the sale of the real property in judicial foreclosure proceedings under Rule 68 of the Rules of Court.2. In this case. the Rules of Court on the foreclosure of mortgages shall apply. 2137. The creditor does not acquire the ownership of the real estate for nonpayment of the debt within the period agreed upon. 2. This is because the property stands as a security for the payment of the principal obligation. 2136. and thereafter to the principal. The creditor has the following remedies in case of default: 1. In such a case. Art. Cayo IID 2002 PAGE 66 . possession must be in the concept of owner. When can the debtor get back the property subject of the antichresis? The debtor can get it back only when he has totally paid the principal obligation. may always compel the debtor to enter again upon the enjoyment of the property. Can the parties stipulate on an extra-judicial foreclosure? Yes. Apply the fruits The creditor must apply the fruits of the property to the payment of interest. The exception to this rule is if the creditor does not want to pay the taxes and charges upon the estate. Art. in order to exempt himself from the obligations imposed upon him by the preceding article. in the same manner that they are allowed in pledge and mortgage. But the latter. Also. and not its ownership. Can the creditor acquire the property given in antichresis by prescription? No. What happens when the debtor defaults on the principal obligation? The creditor DOES NOT acquire ownership of the real estate. except when there is a stipulation to the contrary. In order to acquire property be prescription. UNLESS there is a contrary stipulation (exception to the exception). which is void.
Nature and Effect of Preference 1. (2085) 2. the excess shall be applied to the principal. he can acquire the property by prescription. Preference applies only when there are two or more creditors with separate claims against a debtor who has insufficient property. The contract of antichresis may secure all kinds of obligations – pure or conditional. The indivisibility of the antichresis is not affected by the fact that the debtors are not solidarily liable. it is the right to be paid first. (2090) 4. if the creditor repudiates the antichresis. (2089) 3. 2138. 2139. Other characteristics of Antichresis: 1. The last paragraph of article 2085. The contracting parties may stipulate that the interest upon the debt be compensated with the fruits of the property which is the object of the antichresis. who is not a party to the principal contract. are applicable to this contract. provided that if the value of the fruits should exceed the amount of interest allowed by the laws against usury. Art. you have to pay your creditors when the debt becomes due.Exception: Just like in a co-ownership. the law as to preferences is strictly construed. since there is no Usury Law anymore. Art. may offer his immovable under the contract of antichresis to secure the debt of another. There should be no rules as to who should be paid first. The second part of this provision is no longer applicable. The contract of antichresis is indivisible. generally. The creditor must first apply the fruits to the payment of the interest. A third person. (2091) CONCURRENCE AND PREFERENCE OF CREDITS What is concurrence of credits? Concurrence of credits implies the possession by two or more creditors of equal rights or privileges over the same property or all of the property of a debtor. Since it is an exception to the general rule. Cayo IID 2002 PAGE 67 . Exception to the general rule – Because. then the creditor should apply the excess to the principal. What is preference of credit? It is the right held by a creditor to be preferred in the payment of his claim out of the debtor’s assets above others. In other words. and articles 2089 to 2091. If the value of the fruits exceeds the value of the interest due.
It must be maintained – Where a creditor released his levy. Preference applies after a sale. and you have no liquidated property out of which you can pay them. 4. The debtor is liable with all his property. There must be a proceeding such as an insolvency proceeding wherein the creditors can file their claims. General Rule: A debtor is liable with ALL his property. 2. When are the rules on preference of credits applicable? The rules apply only where: 1. What is the difference between preference of credit and a lien? A preference applies only to claims which do not attach to specific properties. 3. 4. creates a charge on a particular property. you have no way of knowing who the creditors are.2. Can a creditor whose credit is not yet due assert a right to preference? No. It must be asserted – If the right claimed is not asserted and maintained. for the fulfillment of his obligations. leaving the property in possession of the debtor. there are two or more creditors with separate and distinct claims against the same debtor who has insufficient property. CHAPTER 1 GENERAL PROVISIONS Art. for the fulfillment of his obligations. present and future. 5. on the other hand. 3. The title on Concurrence and Preference of Credits refers only to credits which are already due. Cayo IID 2002 PAGE 68 . Because before that. A lien. present and future. The right becomes significant only after the properties of the debtor have been inventoried and liquidated. The creditor does not have the right to TAKE the property or SELL it as against another creditor – Preference is not a question as to who may take and sell property belonging to the debtor. he is deemed to have abandoned his claim of preference. it is open to seizure by another. but merely a preference in the application of the proceeds of the property after it is sold. and the claims of the various creditors have been established. thereby indicating that he did not intend to press his claim further as to that specific property. it is lost. subject to the exemptions provided by law. 2236. and it is a question of application of the proceeds of the sale to satisfy the debt. Does not create an interest in property – Preference simply creates a right to be paid first from the proceeds of the sale of property of the debtor. If property has not been seized. It does not create a lien on the property itself.
only his undivided share or interest in the property can be possessed by the assignee in insolvency proceedings.Exceptions: Exemptions provided by law. ordinary preferred credits listed in 2244 3. Insolvency shall be governed by special laws insofar as they are not inconsistent with this Code. the family home. 2240. property in custodia legis. Art. If it is the husband who is insolvent. 2239. See page 489-492 of De Leon for the list (not very important) Art. the assets of the CPG or AC do not pass to the assignee in insolvency elected by the creditors or appointed by the court. the trustee is not the owner of the property. its property shall not be among the assets to be taken possession of by the assignee for the payment of the insolvent debtor’s obligations. though he has legal title thereto. The CPG or AC subsists. The insolvency of the husband does not dissolve the CPG or AC. other than that mentioned in the preceding article. Since he is not the absolute owner of the property held in trust. common credits under 2245 Special Preferred Credits (2241 and 2242) Cayo IID 2002 PAGE 69 . special preferred credits listed in 2241 and 2242 2. these properties should not be included in insolvency proceedings. 2237. his undivided share or interest therein shall be among the assets to be taken possession of by the assignee for the payment of the insolvent debtor’s obligation. by order of the court. So long as the conjugal partnership or absolute community subsists. except insofar as the latter have redounded to the benefit of the family. The exemption applies provided that: 1. Art. In a trust. CHAPTER 2 CLASSIFICATION OF CREDITS The Civil Code classifies credits against a particular insolvent into three general categories: 1. The obligations of the insolvent spouse have not redounded to the benefit of the family. If there is a co-ownership (other than CPG or AC) and one of the co-owners becomes insolvent. The reason for this is that the CPG or AC is distinct from the individual spouses. If one of the spouses is insolvent. Property held by the insolvent debtor as a trustee of an express or implied trust. the shares of the other co-owners cannot be taken possession of by the assignee. Of course. 2238. the administration of the conjugal partnership or absolute community may. If there is property. owned by two or more persons. and 2. etc. Art. one of whom is the insolvent debtor. be transferred to the wife or to a third person other than the assignee. such as future support. shall be excluded from the insolvency proceedings.
upon the price of the sale. (5) Credits for the making. (7) For expenses of salvage. provided it has not lost its form. money or securities obtained by them. and if the movable has been resold by the debtor and the price is still unpaid. (12) Credits for rent for one year. kept or possessed. (11) Credits for seeds and expenses for cultivation and harvest advanced to the debtor. (13) Claims in favor of the depositor if the depositary has wrongfully sold the thing deposited. upon the goods carried. breach of trust. on the movables belonging to the guest as long as such movables are in the hotel. up to the value thereof. so long as they are in the possession of the debtor. (4) Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor.The items in bold face are the important/relevant ones: Art. the following claims or liens shall be preferred: (1) Duties. for the price of the contract and incidental expenses. Cayo IID 2002 PAGE 70 . or those guaranteed by a chattel mortgage. on the share of each in the fruits or harvest. substance and identity. on the goods manufactured or the work done. the lien may be enforced on the price. until their delivery and for thirty days thereafter. on the movables. this right is not lost by the immobilization of the thing by destination. repaired. on the movable thus made. taxes and fees due thereon to the State or any subdivision thereof. repairs. safekeeping or preservation of personal property. up to the value of the same. on said movables. (10) Credits for lodging and supplies usually furnished to travelers by hotel keepers. when the price thereof can be determined proportionally. (8) Credits between the landlord and the tenant. neither is the right lost by the sale of the thing together with other property for a lump sum. upon the goods salvaged. but not on money or instruments of credit. upon the things pledged or mortgaged. or malfeasance by public officials committed in the performance of their duties. With reference to specific movable property of the debtor. but not for money loaned to the guests. upon the personal property of the lessee existing on the immovable leased and on the fruits of the same. upon the fruits harvested. (6) Claims for laborers’ wages. (2) Claims arising from misappropriation. (9) Credits for transportation. 2241. arising from the contract of tenancy on shares. (3) Claims for the unpaid price of movables sold.
Also. P1M import duties on the car 2. P2M chattel mortgage 3. it must be registered in the chattel mortgage registry. it must be in a public instrument. If it is sold to a purchaser for value and in good faith. 2141 does establish the order of priority among these claims. malfeasance of public officers The acquisition must have been in the performance of official functions. Last paragraph of 2241 If the movable is wrongfully taken. breach of trust. you must remember that. creditors merely concur. There is no preference among them.5M. If it’s a chattel mortgage. within thirty days from the unlawful seizure. (2) Misappropriation. With respect to the same specific movable or immovable. exercising the right of the debtor to recover property wrongfully taken from him granted under Article 559. except that the State always gets paid the taxes imposed on the property first. if the movables to which the lien or preference attaches have been wrongfully taken. P1M promissory note (notarized) What are the preferred claims with respect to the Jaguar? 1. the creditor may demand them from any possessor. (4) Guaranteed with a pledge or chattel mortgage To be a preferred credit: If it’s a pledge. there can be no more claim on the movable.In the foregoing cases. (1) Taxes The tax must be due on the movable itself. unpaid price of the car of P1M d. P1M unpaid price Cayo IID 2002 PAGE 71 . First. aside from item (1) on taxes imposed in connection with the movable. the preferred creditor may get it back within 30 days through an accion subrogatoria. chattel mortgage on the car worth P2M c. It just enumerates the preferred claims with respect to specific movables. Problem: The Debtor’s only property is a Jaguar worth P2. the property must still be in the hands of the public official. to the Government: Income tax of P1M Import duties on the car worth P1M b. His liabilities are: a.
How do you prioritize the preferred claims? 1. engineers and contractors.These are the only preferred claims because they are the ones attached to the movable itself. The trustor/government actually owns the car. and shall constitute an encumbrance on the immovable or real right: (1) Taxes due upon the land or building. The trustor is the government. The Government wants to recover the car. upon the immovable sold. as well as of architects. engaged in the construction.5M left: P1M will go to the mortgagee and 500K will go to the unpaid seller. the government) are used to purchase a movable under the name of another person (the corrupt government official). since the Jaguar is not among the properties of the insolvent debtor. mechanics and other workmen. If you’re government counsel. however. The income tax and the promissory note are not preferred because they are not attached to the car. masons. Government official becomes insolvent. unlike the government claim for tax credits. canals. (2) For the unpaid price of real property sold. This has to be done in the context of insolvency proceedings. such as an unpaid seller. the following claims. When funds belonging to another (in this case. But. 2242. so it should be excluded from the insolvency proceedings. In order to be preferred. Under a trust agreement. The government would have to share with the other creditors who likewise have a special preferred claim on the Jaguar. mortgages and liens shall be preferred. Problem: Government official used public funds to acquire a Jaguar from a seller in good faith. Cayo IID 2002 PAGE 72 . (3) Claims of laborers. P1M import duties – the State is always the priority with respect to preferred claims 2. (2) of 2241. With reference to specific immovable property and real rights of the debtor. canals or other works. reconstruction or repair of buildings. upon said buildings. There is thus no need to go through the insolvency proceedings. X can show that the money is not owned by Investment House. It has a preferred claim over the car under par. while the trustee is the government official. it is not prioritized over other special preferred claims. X gave Investment House some money. or other works. the disadvantage of this is that. the tax must be imposed on the movable itself. Note. If Investment House becomes insolvent. Investment House issued promissory notes for its obligations to other creditors. Art. The chattel mortgagee and the unpaid seller will then proportionally share the P1. there is an implied trust. that taxes are not always preferred. how should you proceed? The textbook answer would be that the government can go after the car in insolvency proceedings. income tax is not preferred with respect to the Jaguar. The better alternative is to characterize it as an implied TRUST. Investment House placed the money in a time deposit. For example.
this does not share equally with the other claims. (9) Claims of donors of real property for pecuniary charges or other conditions imposed upon the donee. canals or other works. for the insurance premium for two years. (8) Claims of co-heir in the partition of an immovable among them. The credit is preferred only with respect to other attachments. (6) Expenses for the preservation or improvement of real property when the law authorizes reimbursement upon the immovable preserved or improved. upon said buildings. (10) Credits of insurers. (2) Unpaid Seller There is no need to register the sale in order for the unpaid seller to have a preferred claim against the immovable. (5) Mortgage The mortgage must be registered in the Registry of Property in order for the credit to be a preferred claim against the immovable. or execution The credits must also be registered in order to be preferred. attachment. The preference is only with respect to LATER CREDITS. these credits do not share proportionately in the property upon which they are imposed. This provision covers real property taxes. Unlike the other special preferred credits. in virtue of a judicial order. not to other kinds of credit. Therefore. reconstruction or repair of buildings. or execution that is first registered in the Registry of Property is preferred over other credits of the same nature. upon the immovable donated. It merely provides that a credit by virtue of judicial order. canals or other works. by attachments or executions. (5) Mortgage credits recorded in the Registry of Property upon the real estate mortgaged. (1) Taxes Capital gains tax is NOT a preferred credit because it is really a tax on income and not on the property itself. upon the property insured. and only as to later credits. (7) Credits annotated in the Registry of Property. which are registered at a later date. upon the property affected. (7) Credits annotated in the Registry of Property in virtue of judicial order. upon the real property thus divided. To determine the Cayo IID 2002 PAGE 73 .(4) Claims of furnishers of materials used in the construction. attachment.
2242 is merely an enumeration. which is why it would be more difficult to recover them. X does not have to line up and compete with other creditors’ claims. Problem: Debtor’s only assets are a house and lot worth P5M. The first one to be registered will be prioritized over the others. Hence. For the reason of the Code Commission. Cayo IID 2002 PAGE 74 . the corrupt public officials cannot really hide them. Problem: Realty Company entered into a contract to sell with X. in case it becomes insolvent? X should claim that he still owns the lot since the contract was merely a contract TO sell. X can also claim that the condominium project on the lot cannot be included in the insolvency proceedings either because it is an improvement on a lot owned by X. With respect to the car. 2242. pay off the preferred claims first: House and Lot worth P5M – P3M REM obligation = P2M excess Car worth P1M – 500K chattel mortgage obligation = 500K excess The excess after the preferred claims have been satisfied will go to the free property of the debtor: Free property = Jewelry worth 500K + P2M excess from House and Lot + 500K excess from car = 500K + 2M + 500K = 3M The free property of Debtor is worth P3M. because he can say that he is the owner of the property. What are the preferred credits? How much free property does Debtor have? With respect to the house and lot.order of priority among several credits of this kind. a car worth P1M. which is prioritized. Why isn’t there a provision for malfeasance or misfeasance with respect to immovables? Corrupt public officials can easily hide movables. To determine the value of the Debtor’s free property. and Realty Company will pay the price in installments. But in the case of immovables. the real estate mortgage is preferred. Again. the chattel mortgage is preferred. the lot should not be included in the insolvency proceedings concerning Realty Company. there is a provision giving the government preference with respect to movables. The lot was used in a condominium project. X will sell the lot to Realty Company. ask Pelagio Cuison). Realty Company failed to pay the installments in full. Debtor has other obligations worth P6M. Among Debtor’s liabilities are a real estate mortgage on the house and lot to secure a loan worth P3M and a chattel mortgage on the car to secure a loan worth P500K. and jewelry worth 500K. if Realty Company becomes insolvent. Therefore. with the exception of taxes imposed upon the immovable. Under the contract to sell. The other creditors for P6M will then line up for this portion according to the order of priority established in Art. How can X collect from Realty Company. not by Realty Company. is not an order of priority. This way. The government can establish a preferred claim over them simply by attaching. their dates should be the basis. 2244 if they are ordinary preferred credits and 2245 if they are common credits. (This is the reason given by JPSP.
real and personal of the debtor. and for three months thereafter. You should find a way to be the owner of the thing that you’re after – such as. 1. (2) Credits for services rendered the insolvent by employees. The rest of the special preferred claims share equal preference among themselves. (11) Taxes and assessments due any city or municipality. Art.JPSP says that if you’re a creditor. The claims or credits enumerated in the two preceding articles shall be considered as mortgages or pledges of real or personal property. and family. Ordinary Preferred Credits (2244) Art. when properly authorized and approved by the court. shall first be satisfied. 1. No. (7) Fines and civil indemnification arising from a criminal offense. laborers. (6) Support during the insolvency proceedings. 1. With reference to other property. 1. or liens within the purview of legal provisions governing insolvency. (12) Damages for death or personal injuries caused by a quasi-delict. (3) Expenses during the last illness of the debtor or his or her spouse and children under his or her parental authority. (10) Taxes and assessments due any province. if they have no property of their own. (9) Taxes and assessments due the national government other than those mentioned in Articles 2241. proving that it’s an implied trust or a contract to sell. or illness resulting from the nature of the employment. the following claims or credits shall be preferred in the order named: (1) Proper funeral expenses for the debtor. and 2242. No. 1 article 2241. 2244. during the last year preceding the insolvency. you should avoid the preferred claim route because you would rather not line up along with the other creditors. article 2242. 2243. 1. No. No. No. and 2242. 2243 gives the rule that taxes due on the movable or on the immovable concerned should be satisfied first. other than those indicated in Articles 2241. Cayo IID 2002 PAGE 75 . and No. (8) Legal expenses. (5) Credits and advancements made to the debtor for support of himself or herself. or children under his or her parental authority who have no property of their own. 1. when approved by the court. (4) Compensation due the laborers or their dependents under laws providing for indemnity for damages in case of labor accident. and expenses incurred in the administration of the insolvent’s estate for the common interest of the creditors. 1. Taxes mentioned in No. other than those referred to in Articles 2241. and 2242. No. or household helpers for one year preceding the commencement of the proceedings in insolvency. etc.
A judgment for sum of money dated October 1. 2002. Also. A promissory note in a private document dated January 1. Labor claims are still not in the level of special preferred claims under 2241 and 2242. These credits shall have preference among themselves in the order of priority of the dates of the instruments and of the judgments respectively. 2002. Examples are income tax. without special privilege. (11) Taxes Note that this is unlike special preferred claims where a tax is imposed upon a specific movable or immovable property. appear in (a) a public instrument. which can be collected against the debtor’s free property. 10th. license fees. 110 of the Labor Code has modified 2244 by moving labor claims to number (1). Once the special preferred claims under 2241 and 2242 have been satisfied. (10). This does not include those registered credits which fall under 2241 and 2242. and capital gains tax. and 11th priorities with respect to the free portion of the property of the debtor. To determine the order of preference among them. taxes of other kinds are only ordinary preferred credits and are only 9th. then the city or municipal government. as provided by 2243. First in time. or (b) in a final judgment. such as those arising from a pledge or mortgage. The debtor’s free property will then be used to pay ordinary preferred claims in the order established in 2244. so they are ordinary preferred claims. sabi nga ni CLV. Cayo IID 2002 PAGE 76 . 2002. The Labor Code merely moved it up to the top of the list of ordinary preferred claims. just consider the date. on the other hand. Art. enjoy first preference with respect to the property upon which they are imposed. if they have been the subject of litigation. or an attachment of specific real property. followed by the provincial government. it establishes the order of priority. Also. Example: The claims are as follows: A notarized promissory note dated May 1. unlike 2241 and 2242. Taxes owing the national government should be satisfied first. the property remaining constitute the debtor’s free property. (14) Credits which.(13) Gifts due to public and private institutions of charity or beneficence. Unlike 2241 and 2242. (14) Credits appearing in a public instrument or in a final judgment This paragraph contains the rule of preference when you have several credits appearing in public instruments or in a final judgment. The preference is with respect to the mass of properties of the debtor remaining after the special preferred claims have been satisfied. 110 of the Labor Code has removed the one-year limitation. 2244 is not merely an enumeration. ahead of funeral expenses. Under 2244. These are not imposed on specific property of the debtor. 2244 does not establish a preference with respect to specific property of the debtor. Special preferred claims. (9). priority in right. Important Items (2) Labor Claims Art.
shall be satisfied according to the following rules: (1) In the order established in article 2244. as to the amount paid. shall enjoy no preference. Those assets with special preferred claims under 2241 and 2242 imposed upon them belong to the Preferred Group. Creditors with common credits have to line up for the excess of the debtor’s property after claims under 2241. 2246. 2248. after the payment of duties. The excess. or by any other right or title not comprised in the four preceding articles. and 2244 have been satisfied. exclude all others to the extent of the value of the personal property to which the preference refers. after the payment of the credits which enjoy preference with respect to specific property. 2250. they shall be satisfied pro rata. after the payment of the taxes and assessments upon the immovable property or real right. 2242. real or personal. Those credits which enjoy preference in relation to specific real property or real rights. 2002 Common Credits Art. it is a common credit. Cayo IID 2002 PAGE 77 . Those credits which enjoy preference with respect to specific movables. they share whatever is left in proportion to their credit. 2245. if any. 2251. for the payment of other credits. Art. Art. Notarized promissory note dated May 1. There is no order of preference among common creditors. and 2244. 2002 Judgment dated October 1. Art. 2247. Art. If there are two or more credits with respect to the same specific real property or real rights they shall be satisfied pro rata. 2249. 3. (2) Common credits referred to in article 2245 shall be paid pro rata regardless of dates. 2242. CHAPTER 3 ORDER OF PREFERENCE OF CREDITS Art. taxes and fees due the State or any subdivision thereof. APPLYING THE RULES STEP 1: MAKE AN INVENTORY OF ASSETS List down all the assets of the debtor. If it is not among those mentioned in 2241. exclude all others to the extent of the value of the immovable or real right to which the preference refers. 2002 Promissory note in a private document dated January 1. Group these assets into two: the Preferred Group and the Free Property Group. 2. shall be added to the free property which the debtor may have. regardless of date. Credits of any other kind or class. Those credits which do not enjoy any preference with respect to specific property and those which enjoy preference.What is the order of priority? 1. Art. If there are two or more credits with respect to the same specific movable property.
chattel mortgage. Since the mortgage creditor and the unpaid seller are both special preferred creditors. STEP 2: GROUP THE CLAIMS Make four groups – (1) special preferred credits on movables. and unpaid seller. such as income taxes and license fees (In the following order: national government. There will only be proportionate sharing in case the value of the thing after payment of taxes is not enough to Cayo IID 2002 PAGE 78 . The usual example is a promissory note in a private instrument. He may have legal title to it. c. since 2244 already gives the order of preference. such as notarized promissory notes Put the other credits not falling under these three together. provincial government. they will share the balance proportionately. List them down according to the order under 2244. STEP 3: SATISFY THE SPECIAL PREFERRED CLAIMS First: Take the value of the specific movable/immovable upon which the preferred claim is imposed. look out for the following because they are the most common: 1. Remember. etc. city or municipal government). b. but the beneficial title and ownership actually belong to another person. The same goes for property of the AC of CPG. These are the common claims. credits in a final judgment or in a public document. For movables: a.Those without special preferred claims will constitute the debtor’s Free Property. Second: Pay the taxes due on the property. though. 2. For the special preferred claims. property held as lessee or usufructuary. labor claims taxes other than those imposed directly upon a movable or an immovable. real estate taxes an obligation secured by a real estate mortgage (registered) claim of unpaid seller for the price of the immovable credits annotated in the Registry of Property by attachment or execution upon the immovable Put the ordinary preferred claims under 2244 together. they should not be included in the proceedings. Since the property does not belong to the debtor. The most common are: 1. pay the taxes first. (3) ordinary preferred credits. d. In this case. c. and (4) common credits. b. 2. What if you have more than one preferred creditor over the same property? Ex: The claims against a car are: import duties. import duties/other taxes imposed directly on the movable an obligation secured by a pledge (in a public instrument) or a chattel mortgage (registered) claim of unpaid seller for the price of the movable For immovables: a. Remember to take out property held by the debtor only in the capacity of trustee. Third: Pay the preferred claim of the creditor. (2) special preferred credits on immovables. 3. that labor claims are on top.
If the deficiency is in a credit arising from a transaction that is not in a public document or is not contained in a final judgment (ex: unrecorded sale). You know it’s in a public instrument because it was treated at first as a special preferred credit. real mortgage. 3. there is an excess. Make sure that you add the excess to the Free Property Group. the credit will be a common credit if it is not notarized or contained in a final judgment. there will be several credits in public instruments and final judgments. If the value of the thing is sufficient. Cayo IID 2002 PAGE 79 . STEP 6: SATISFY THE COMMON CLAIMS Whatever is remaining of the debtor’s free property will be used to satisfy the common claims. after paying the taxes and other special preferred claims. put the deficiency in the ordinary preferred credits group. Fourth: If. The list of common claims If there was a deficiency in satisfying the special preferred claims. STEP 5: SATISFY THE ORDINARY PREFERRED CLAIMS List down all the ordinary preferred claims in the order in which they are listed in 2244. the deficiency will be an ordinary preferred credit if it is notarized or is contained in a final judgment. The inventory of assets You may have to add to the Free Property Group if. then all the special preferred claims must be paid in full. STEP 4: UPDATE THE INVENTORY AND LIST OF CREDITS After you have satisfied all of the special preferred claims. Since these will not be enough to cover the debtor’s remaining liabilities (he’s insolvent). Why do we know right away that it is an ordinary preferred credit? It is a credit in a public instrument. or chattel mortgage. b. Arrange these by date. the common creditors will share the balance in proportion to the amount of their credit. If the deficiency is in a credit arising from a pledge. 2. follows these rules: a. take the value of the excess and add it to the debtor’s Free Property. you have an excess. The list of ordinary preferred claims If there was a deficiency in satisfying the special preferred claims. update the following: 1. so it is an ordinary preferred credit under (14) of 2244. Fifth: If the value of the specific property is not enough to satisfy the taxes and other special preferred claims. regardless of the date. put the deficiency in the common credits group. Add up the entire value of the Free Property Group because this is what you will use to settle the ordinary preferred claims and the common claims. after satisfying the special preferred claims. and there is a deficiency.satisfy all of the special preferred claims against it. Those falling on the same date will enjoy equal preference and will share the balance of the free property proportionately. Most probably. and the requirement under 2241 and 2242 is that these transactions be registered (for real and chattel mortgage) or be in a public document (for pledge). This is the order of preference among them.
3. there will be a deficiency of P2M. sold to him on March 1. His obligations are as follows: A real estate mortgage dated June 1. 2002. a creditor is able to obtain a favorable judgment against Debtor for P100K. he executes a Real Estate Mortgage over his house and lot worth P3M to secure a P5M loan. But since it is for P5M and the house and lot is only worth P3M. 2002. 2002 Chattel mortgage on the car dated March 1. 2002 License fee owing the city government for business of Debtor Notarized promissory note dated March 1. a car. On the same date. 2002 What is the order of preference? First. The P2M will be an ordinary preferred credit. Next in priority are the notarized promissory note for P1M and the P2M deficiency on the mortgage credit. The mortgage credit should be satisfied first. Debtor executes a promissory note for 500K in a private instrument. The debtor’s assets are a house and lot. They are both ordinary preferred credits under (14) of 2244. So my suggestion is to make the lists mentioned above and just update the list of ordinary preferred claims and common claims after satisfying the special preferred claims. 2002 Acknowledgment receipt of debt dated March 1. which is a common credit. Examples: On January 1. with attachment on house and lot dated January 1. 2. 2002 Judgment dated March 1. and cash. make the inventory: Immovable Property with Special Preferred Claim House and Lot Movable Property with Special Preferred Claim Car Free Property Cash Second. he also executes a notarized promissory note for P1M. in case there is an excess or deficiency. He is insolvent. On March 1. The last to be satisfied will be the promissory note in a private instrument. JPSP will just ask us to list the order of preference of several credits. group the credits: Cayo IID 2002 PAGE 80 .Most probably. they enjoy the same order of preference and will share proportionately in the free property of the Debtor. Debtor becomes insolvent. 2002. What is the order of priority of his creditors’ claims? 1. Since they were executed on the same date. 2002. 2002 Real property tax on the house and lot Income tax Import duty on the car Unpaid seller of the lot. On September 1.
2. b. 2002 COMMON CLAIMS Acknowledgment receipt of debt dated March 1. 2002 Add: Deficiency in claim of Real estate mortgage creditor dated June 1. Import duty Chattel mortgage creditor Fourth.SPECIAL PREFERRED CLAIMS OVER IMMOVABLE PROPERTY Real estate mortgage dated June 1. 2002 Real property tax on the house and lot Unpaid seller of the lot. 2002 Third. 2. satisfy special preferred claims: With respect to the House and Lot 1. c. Real property tax The following will share proportionately the balance after the payment of the real property tax: a. 2002 Deficiency in claim of unpaid seller of the lot. sold on March 1. Real estate mortgage creditor Unpaid seller Judgment dated March 1. 2002 Deficiency in claim from judgment dated March 1. update the list of credits: ORDINARY PREFERRED CLAIMS Income tax License fee owing the city government for business of Debtor Notarized promissory note dated March 1. 2002 [Let’s assume that there was a deficiency in settling the claims of these three creditors] With respect to the Car 1. with attachment on house dated January 1. 2002 Judgment dated March 1. 2002 COMMON CLAIMS Acknowledgment receipt of debt dated March 1. sold on March 1. 2002 with attachment on house and lot dated January 1. 2002 ORDINARY PREFERRED CLAIMS Income tax License fee owing the city government for business of Debtor Notarized promissory note dated March 1. 2002 SPECIAL PREFERRED CLAIMS OVER MOVABLE PROPERTY Import duty on the car Chattel mortgage on the car dated March 1. 2002. 2002 Cayo IID 2002 PAGE 81 .
2002 Unpaid seller’s deficiency. 2002 Deficiency in judgment credit. 2. 2002 Deficiency in real estate mortgage. dated March 1. pay the common claims out of free property Acknowledgment receipt of debt Cayo IID 2002 PAGE 82 . 2002 4. pay the ordinary preferred claims out of free property in the following order: 1. dated June 1. 3.Fifth. Sixth. sale dated March 1. Income tax License fees Proportionate sharing: Notarized promissory note dated March 1.
by court order. SUSPENSION OF PAYMENTS UNDER PD 902-A Who may file for suspension of payments under PD 902-A? A corporation may file for suspension of payments under PD 902-A if it is either: 1. 2. Solvent but not liquid. 3. Suspension of Payments Petition for Voluntary Insolvency Petition for Involuntary Insolvency I. foresees the impossibility of meeting them when they respectively fall due (solvent but not liquid). The Insolvency Law provides for three remedies: 1. A natural person cannot file for suspension of payments under PD 902-A. What are the advantages of filing a petition for suspension of payments? The advantages of filing a petition for suspension of payments are: 1. Insolvent and under the management of a Rehabilitation Receiver or Management Committee A Rehabilitation Receiver or Management Committee is a group of persons appointed by the court to take over the assets of the insolvent corporation in order to turn it around. while possessing sufficient property to cover his debts. OR 2. and Cayo IID 2002 PAGE 83 . What are the laws governing suspension of payments? A debtor may file a petition for suspension of payments either under The Insolvency Law or PD 902-A. of the payment of debts of one who. The debtor has continued access to the assets and resources of the corporation. Where do you file a petition for suspension of payments under PD 902-A? You file the petition with the RTC (it used to be with the SEC. SUSPENSION OF PAYMENTS What is suspension of payments? Suspension of payments is the postponement. but the law was amended).INSOLVENCY LAW What is insolvency? It denotes the state of a person whose liabilities are more than his assets.
if he files it under PD 902-A.2. not the Insolvency Law). The debtor can delay payment for as long as the court allows. Cayo IID 2002 PAGE 84 . so it’s a good chance to bargain with creditors in the meantime. It gives the debtor leverage or a framework for negotiation (that is.
petitioning that he be declared in the state of suspension of payments. the creditors have a say on whether to grant the petition. what are the advantages of filing the petition for suspension of payments under PD 902-A instead of under the Insolvency Law? 1. File a petition with the RTC where the debtor has resided for six months prior to the filing of the petition. it would be better to file the petition under PD 902-A. What is the procedure for suspension of payments? 1. a statement of his assets and liabilities. not under the Insolvency Law). only the court decides. possessing sufficient property to cover all his debts (SOLVENT) 2. Under the Insolvency Law. The meeting should take place not less than 2 weeks nor more than 8 weeks from the date of the order. Under PD 902-A. even if the corporation is insolvent. Under PD 902-A even secured creditors are covered by the suspension. 2. 3. as mentioned already. 2. PD 902-A is more lenient than the Insolvency Law. Under the Insolvency Law. it can file for suspension of payments. Under the Insolvency Law. 3. Under PD 902-A. debts and liabilities. The court will issue an order calling for the meeting of all creditors. there are no exceptions. The petition need not be verified. and the proposed agreement that he requests from his creditors. The petition should be accompanied by a verified list of all of his creditors. the debtor must be solvent but not liquid. The order will be published and notice sent to all the creditors of the debtor. foreseeing the impossibility of meeting them when they respectively fall due (NOT LIQUID) 3. Cayo IID 2002 PAGE 85 . if you’re a corporation. All claims are suspended.If you were the debtor corporation. The debtor may either be a natural or juridical person (Although. they may foreclose upon default. SUSPENSION OF PAYMENTS UNDER THE INSOLVENCY LAW (SECTIONS 2-13) What are the requisites of the petition for suspension of payments under the Insolvency Law? The petition must be filed by a debtor: 1. as long as it is under Rehabilitation Receiver or Management Committee. secured creditors are not covered by the suspension.
is his single vote a valid majority? No.000. he does not constitute 2/3 of the number of creditors voting.000. in addition. No disposition of his property may be made by the debtor except those made in the ordinary course of business.4. this shows that the debtor is liquid after all. there will be a quorum because they represent 6. Issuance of the order of the court directing that the agreement be carried out in case the decision is declared valid. Majority required to approve the proposal: A double majority consisting in 2/3 of the number of creditors voting. Objections. or when no objection to said decision has been presented. The creditors will approve the proposition of the debtor. 6. Also. The debtor merely buys more time to satisfy his obligations. If X and Y are present. to the decision must be made within 10 days following the meeting.000. creditor Y: 3. No payments may be made by the debtor except those made in the ordinary course of business. who must. There will be a meeting of creditors in which they will decide whether to grant the petition. Why is it in the interest of the debtor to refrain from making any disposition or payment other than those in the ordinary course of business? Dispositions or payments made which are not in the ordinary course of business may indicate that the debtor connived with a creditor into voting in favor of the suspension of payments by buying his vote. What if the debtor owes one creditor a total of P60K. What are the effects of filing of the petition? 1. Example: There are 99 creditors representing total liabilities worth P100K. the creditors present must represent at least 60% of the total liabilities of the debtor.000 or 60% of the total liabilities of A. represent at least P60K worth of liabilities. 7. 5. if any. Because although he met the requirement of 60% of the liabilities. Upon request to the court. and therefore. does not need to be placed in a state of suspension of payments. 2. Cayo IID 2002 PAGE 86 . There must be a double majority.000 as follows: creditor X: 3. all pending executions against the debtor shall be suspended except execution against property especially mortgaged. What is the majority required to approve any proposal? The majority required is 66 creditors (2/3 of the number of creditors voting). and creditor Z: 4. 3. which 2/3 must represent at least 60% of the total liabilities of the debtor. Take note that the amount of the debt is not reduced. Ex: A has liabilities worth P10. Quorum Requirement: To have a valid meeting.
they will represent 201/299 of the creditors. Ex: There are 99 creditors with claims worth P100K total. His problem is the 2/3 of the creditors requirement. in which case. The disclosure shall be verified or confirmed under oath. Fraudulent connivance between a creditor and the debtor for the creditor to vote in favor of the proposed agreement. 1 creditor represents 60K worth of credits. These are not bribes but merely incentives to induce them to vote in favor of suspension.) What are the grounds for questioning the decision of the meeting? 1. Which creditors are not affected by the order of suspension of payments? Aside from those creditors to whom notice was not given. BUT. maintenance. 2. Procedural defects in the calling and holding of the meeting. while the other 98 are against it. What he can do is to assign some of his credits to 200 other people. They can foreclose upon default in spite of the suspension of payment. ALL creditors are covered by the suspension of payments. this is a ground for questioning the decision of the meeting. the decision of the meeting can be set aside. If there is proof that the debtor somehow bribed the creditor or bought his vote. The debtor is obliged to disclose all of his creditors in the petition. the following creditors are also not covered by the suspension: 1. such as higher interest rates.Are all of the creditors of the debtor affected by the filing of the petition? Only those creditors included in the schedules filed by the debtor will be called upon to take part in the meeting. with a total claim of 60K. Persons having legal or contractual mortgages. those who did not appear because they were not informed of the proceedings will not be affected. and the deliberations conducted. This rule applies only when the petition is filed under the Insolvency Law. The one creditor is in favor of suspension of payments. How will this one creditor manipulate the situation in order to approve the petition? He has already complied with the 60% requirement. However. which caused prejudice to the rights of the creditors. Cayo IID 2002 PAGE 87 . expense of last illness and funeral of the wife or children of the debtor incurred in the 60 days immediately preceding the filing of the petition. and 2. while the other 98 creditors represent a total of 40K. 3. it is legal to give OTHER incentives to the creditor. Fraudulent conveyance of claims by a creditor for the purpose of obtaining a majority. Hence. This is enough to meet the double majority requirement. (But take note that this does not apply if the petition was filed under PD 902-A. since he only represents 1/99 of the creditors. That way. Persons having claims for personal labor.
some creditors may not receive anything at all. and effects not exempt from execution for the benefit of his creditors. There must be three or more creditors if it is involuntary insolvency. The date of the filing of the petition is important for purposes of reckoning certain periods. and where there are preferences. What are the jurisdictional requirements for the petition for voluntary insolvency? In the petition.II. and b. the debtor shall indicate: 1. 3. estate. such as the residency requirement. an outline of the facts giving rise or which might give rise to a cause of action against the insolvent debtor Cayo IID 2002 PAGE 88 . The petition shall be accompanied by: 1. A verified schedule containing: a. his inability to pay all his debts in full. his willingness to surrender all his property. his place of residence and the period of residence therein prior to the filing of the petition. the debtor himself is the petitioner. VOLUNTARY INSOLVENCY What is the concept of voluntary insolvency? An insolvent debtor whose liabilities exceed P1. SUSPENSION OF PAYMENTS To suspend or delay the payment of debts Debtor has sufficient property to pay his debts The amount of indebtedness is not affected. Distinctions between suspension of payments and insolvency (in general) INSOLVENCY PURPOSE SOLVENCY OF DEBTOR EFFECT ON AMOUNT OF INDEBTEDNESS To discharge the debtor from the payment of debts Debtor does not have sufficient property to pay his debts The amount is affected.000 may apply to be discharged from his debts and liabilities by filing a petition for voluntary insolvency in the RTC where he has resided for the last six months prior to the filing of the petition. Creditors receive less than their credits. 4. an application to be adjudged insolvent. 2. In voluntary insolvency. a full and true statement of all debts and liabilities of the insolvent debtor. NUMBER OF CREDITORS The number of creditors is immaterial.
The court need not conduct a hearing before declaring the debtor insolvent and taking his assets. if any. there need not be an allegation of an act of insolvency by the creditors of the debtor. Conveyance of the debtor’s property by the clerk of court to the assignee. to the discharge. 7. upon his application. Objection. A verified inventory containing: a. 10. Meeting of the creditors to elect the assignee in insolvency.2. 3. This is because the petition is voluntary on the part of the debtor. and the transfer of any property by him are forbidden. Filing of the petition by the debtor praying to be declared insolvent. except if the debtor is a corporation. location. The very act of filing the petition is the act of insolvency. the one petitioning is the debtor himself. The sheriff takes possession of all the assets of the debtor which are not exempt from execution until the appointment of a receiver or an assignee. an accurate description of all the personal and real property of the insolvent. including a statement as to its value. Unlike in involuntary insolvency. 8. and encumbrances thereon. Discharge of the debtor. 5. whether or not exempt from execution. What is the procedure for voluntary insolvency? 1. 3. 2. Appeal to the Supreme Court in certain cases. In contrast. The payment to the debtor of any debts due to him and the delivery to the debtor or to any person for him any property belonging to him. if agreed upon. in involuntary insolvency. Cayo IID 2002 PAGE 89 . 4. All civil proceedings pending against the insolvent debtor shall be stayed. Publication and service of the order to creditors. an outline of the facts giving rise or which might give rise to a right of action in favor of the insolvent debtor. 9. 6. Liquidation of the debtor’s assets and payment of his debts. It is not adversarial. 2. Composition. This is because in voluntary insolvency. Issuance of an order of adjudication declaring the debtor insolvent. the ones petitioning are the debtor’s creditors. in voluntary insolvency. and b. What are the effects of an order declaring the petitioning debtor insolvent? 1.
attachments or executions on property of the debtor duly recorded and not dissolved are not.000 or more Petition must be accompanied by a bond Petition is granted only after hearing Petition must be filed with RTC where debtor resides or has his place of business. to distribute it equitably among his creditors. Its purpose is to impound all of the non-exempt property of the debtor. there are very few advantages in filing for voluntary insolvency. After filing for voluntary insolvency. no residency requirement Upon hearing of the case ISSUANCE OF THE ORDER OF ADJUDICATION DECLARING THE DEBTOR INSOLVENT Cayo IID 2002 PAGE 90 . But otherwise. If the petitioner is a corporation. Distinctions between Voluntary Insolvency and Involuntary Insolvency VOLUNTARY INSOLVENCY NUMBER OF CREDITORS PETITIONER ACTS OF INSOLVENCY AMOUNT OF INDEBTEDNESS BOND HEARING RESIDENCY REQUIREMENT One creditor is sufficient The insolvent debtor Debtor must not be guilty of any act of insolvency Must be greater than P1. The debtor should just fight it out with his creditors.4.000 Not required Not necessary. INVOLUNTARY INSOLVENCY What is the purpose of involuntary insolvency? A petition for involuntary insolvency is not an ordinary personal action for collection of debts. affected by the order. and to release him from further liability. however. JPSP thinks that the better route is still to file for suspension of payments under PD 902-A instead of filing for voluntary insolvency. Mortgages or pledges. may be granted ex parte Petition must be filed with RTC where debtor has resided for at least 6 months Upon the filing of the voluntary petition INVOLUNTARY INSOLVENCY Three or more creditors Three or more creditors who must possess the qualifications provided by law Debtor must have committed one or more of the 13 acts Must be P1. If the petitioner is a natural person. his only incentive to file a petition for voluntary insolvency is that he will get a discharge from past debts and liabilities (corporations do not get this discharge). no one will trust that debtor enough to lend him money again. since filing for voluntary insolvency is not just demeaning but will even affect the debtor’s credit-worthiness later on. III.
Foreign Company will be forced to settle the obligation.) What are the requisites of the petition for involuntary insolvency? The petition must: 1. Example: Creditor extends a loan to a Foreign Company. set forth one or more acts of insolvency mentioned in the law Cayo IID 2002 PAGE 91 . the credits of these three creditors should NOT have accrued within 30 days prior to the filing of the petition. 5.Who may petition for involuntary insolvency? The petitioners must be: 1. 2. Why would you want to do this? The petition for involuntary insolvency can be used as a tool to harass or pressure a debtor into settling his obligation with the single creditor. be verified by the petitioners 2. how do you do this? Since you’re only one creditor. News of the Foreign Company’s insolvency will reach Hong Kong. you cannot file the petition because the Insolvency Law requires that it be filed by at least three creditors. you should assign some of the credit to at least two other persons. In addition. 4. so that Creditor will withdraw the petition. you can file the petition. If there is only one creditor. To stop the share prices from going down. Foreign Company fails to pay. After waiting for 30 days (cooling-off period). and the price of its shares will go down. then file the petition for involuntary insolvency against Foreign Company. 3.000. at least three creditors of one debtor who are residents of the Philippines. (According to JPSP. there are no competing claims. First. the aggregate amount of which is at least P1. To get around this requirement. there may be instances when you would want to file a petition for involuntary insolvency against the debtor. But if you’re the single creditor of one debtor. it has no assets in the Philippines which Creditor can run after. whose credits accrued in the Philippines. The creditor can just go to court and file a simple action to collect. It’s just a legal tactic to get Foreign Company to settle the obligation. Why does it have to be three creditors? Why is it not enough for one creditor to file the petition? Insolvency proceedings contemplate competing claims of several creditors over the assets of the insolvent debtor. wait 30 days. What should Creditor do? Creditor should first assign some of the credit to two other companies. Creditor can do this even if Foreign Company is not actually insolvent. and since it is a foreign company. which is publicly listed in the Hong Kong Stock Exchange.
Filing of the debtor’s answer or motion to dismiss. This is a jurisdictional requirement. 3. The debtor is given a chance to refute the claim of the petitioners that he is insolvent. In involuntary insolvency. Note that between the filing of the petition and the adjudication of the case by the court. Issuance of the order requiring the debtor to show cause why he should not be adjudged insolvent. 4. Hearing of the case. the bond will answer for damages that Foreign Company can prove as a result of the wrongful filing of the petition. What are the steps in filing a petition for involuntary insolvency? 1. 6. 568 of De Leon for the complete list): a. Meeting of creditors for election of an assignee in insolvency. the debtor committed acts to ensure that the debtor will not be able to pay b. the debtor can dissipate his assets in the meantime. This is in contrast with voluntary insolvency. in such penal sum as the court shall direct. where there is no need for a hearing.What are acts of insolvency? There are 13 acts of insolvency mentioned in Sec. be accompanied by a bond. To protect themselves from this situation. the debtor committed acts in fraud of creditors c. 7. Service to debtor of the order to show cause. Issuance of the order or decision adjudging the debtor insolvent. and damages resulting in the filing of the petition. the debtor committed acts giving preference to one creditor in favor of other creditors But the petition should allege at least one of the 13 specific acts of insolvency mentioned in the law. the creditors should either ask the court for an injunction or for a receiver who will hold the properties of the debtor. there is a hearing because the proceedings are adversarial. approved by the court with at least two sureties. in the earlier case of the single creditor who files the petition against the Foreign Company just to humiliate him. 5. expenses. Cayo IID 2002 PAGE 92 . While the case is being decided by the court. The purpose of the bond is for the petitioners to answer for the costs. For example. 8. 3. 2. Filing of the petition by three or more creditors in the RTC where the debtor resides or has his place of business. These may be grouped into three general categories (See p. there is a period of time during which the debtor still has his assets. 20 of the Insolvency Law. Publication and service of the order.
he has asked for the fixing of the value of the security. Composition. why would you surrender the security? If the security is not enough to cover the obligation. OR 2. The assignment vests title to all the assets of the debtor in favor of the assignee. you might as well participate in the election if you think that the portion that will be allotted to you will be greater than the value that you will realize from the sale of the security. ASSIGNEES What is an assignee? An assignee is the person elected by the creditors or appointed by the court to whom an insolvent debtor makes an assignment of all his property for the benefit of his creditors. 14. in certain cases.The assignee must be elected within two to eight weeks from the date of the order of the adjudication. if agreed upon. except if the debtor is a corporation. IV. As a general rule. Objection. a secured creditor cannot participate in the election. Who can participate in the election of the assignee? Creditors who have filed their claims in the office of the clerk of court at least two days prior to the scheduled election may participate. 13. 11. 12. Discharge of the debtor on his application. Conveyance of the debtor’s property by the clerk of court to the assignee. The assignee represents the insolvent as well as the creditors in voluntary and involuntary proceedings. to the discharge. he has surrendered the security to the sheriff or receiver of the estate of the insolvent. Cayo IID 2002 PAGE 93 . 9. Liquidation of the assets of the debtor and payment of his debts. How do the creditors choose the assignee? The creditors will meet in order to elect the assignee. If you were the secured creditor. 10. unless: 1. if any. Appeal to the Supreme Court.
3. If there was an attachment or a judgment against the insolvent debtor made 30 days before the filing of the petition for insolvency. and effects of the insolvent shall be brought by the assignee and not by the creditors. the assignee will also have other benefits. take into possession all of the property of the debtor. If the creditors do not attend the meeting or fail or refuse to elect an assignee. because the assignee earns a substantial fee. The bond will answer for any liability that the assignee may incur to persons aggrieved by his actions as assignee. Aside from this fee. All actions to recover all the estate. According to Section 42 of the Insolvency Law. What should the assignee do once he is elected? The assignee is required to give a bond for the faithful performance of his duties. the court will appoint the assignee. What are the effects of assignment? 1. it will be set aside. the legal title to all the property of the insolvent is vested in the assignee.000 but less than P10. within five days from his election. If you were given an opportunity. Having these powers. in an amount to be fixed by the court. recover property fraudulently conveyed by the debtor. such as reimbursements of his expenses and the opportunity to refer legal or accounting matters to his firm. The assignee takes the property in the same conditions that the insolvent held it. What are the powers and duties of the assignee? The assignee has the powers of administration over the property of the insolvent. he can sue and recover claims belonging to the debtor. see p. and 4% for sums exceeding P10.000. if he is a lawyer or a CPA. Upon appointment. the majority of the creditors both in number and in the amount of credit they represent (another case of double majority) should vote for the same assignee. or if the assignee fails to qualify or subsequently becomes incapacitated.000 that he will be able to liquidate from the properties of the debtor. the assignee earns commissions at the following rates: 7% for the first P1. So if the amount that you can liquidate is P100M.In order to validly elect an assignee. etc (for a complete enumeration. But the title of the assignee retroacts to the date of the filing of the petition for insolvency. with two or more sureties. 4. and the control of the property is vested in the court. 5% for sums exceeding P1. 2. debts. you will earn P4M.000. 586-587 of De Leon). will you act as an assignee? Yes. Cayo IID 2002 PAGE 94 .
It is paid by the assignee only upon order of the court. embezzles or disposes of any of the property of the insolvent. properties which are exempt by law Cayo IID 2002 PAGE 95 . Which properties are covered in insolvency proceedings? 1. etc. and not to assignments of credit made by the creditors behind each other’s backs. which provides that property found among the property of the insolvent debtor but which are not really owned by him should be taken out of the proceedings. apply the rules under the Civil Code.The assignee does not have powers of disposition. who knows of the pending or imminent insolvency proceedings concerning the debtor. In case of involuntary insolvency. legal costs.) V. except a. Examples are property held in trust or as a lessor or usufructuary. But take note of Section 48. After taking them out. Section 37 of the Insolvency Law: Penalty for Embezzlement Take note of Section 37. what “global” means. the assignee must obtain a court order. and 2. etc. VI. you may not want to do involuntary insolvency because there are a lot of costs – assignee’s fees. (I don’t know. It might be better is you could obtain a global settlement. which provides that if any person. though. This relates only to embezzlement of the debtor’s property. and b. All the separate property of each of the general partners. 48-50 of the Insolvency Law. the petition may be filed by all or any of the partners. What is a dividend in insolvency? It is a part of the fund arising from the assets of the estate of the insolvent debtor. All the property of the partnership. For acts of disposition. such as sale of the property of the insolvent debtor or payment of the creditor’s shares. The penalty will go to the estate of the insolvent. According to JPSP. CLASSIFICATION AND PREFERENCE OF CREDITORS Disregard the rules in Sec. rightfully allocated to a creditor entitled to a share in the fund. PARTNERSHIPS AND CORPORATIONS Who may petition for declaration of insolvency of a partnership? In case of voluntary insolvency. if you’re a creditor. he shall be liable for a penalty equal to double the value of the property embezzled or disposed. the petition may be filed by three or more creditors of the partnership or one or more of the partners. The applicable rules are those under the Civil Code on Concurrence and Preference of Credits (Articles 2236-2251). separate properties of limited partners.
A partnership may be declared insolvent notwithstanding the solvency of the partners constituting it. 1830. the creditors can still go after the general partners for the deficiency. Civil Code). Unlike in partnership. they can just put up a new corporation and start with a clean slate. If the stockholders want a fresh start. 2. a proportionate part of this surplus will be added to the partnership assets and will be used to pay partnership debts. This is why it makes sense to give them a discharge. There is no need to get a discharge in order to have a fresh start. VII. after first exhausting its assets. corporations do not get a discharge. The creditors cannot collect any deficiency from the stockholders. the surplus shall be added to the assets of the individual partners in proportion to their interests in the partnership. The net proceeds of the individual estate of each partner shall be used to pay individual debts. In contrast. The creditors of the partnership. the corporation will not be allowed to get a discharge. Why doesn’t the law give corporations a discharge? Corporations do not get a discharge because their creditors can only go after the assets of the corporation. What happens to the partnership when any of the partners becomes insolvent? The partnership is automatically dissolved by the insolvency of any partner or of the partnership (Art. may proceed against the solvent general partners who are proportionately liable with their separate property. 4. The net proceeds of the partnership property shall be used to pay the debts of the partnership. 3. However. the property of the stockholders of the corporation cannot be used to pay the creditors of the corporation. How do you distribute the net proceeds of the properties of the partnership? 1. and the assets of the partnership are not enough to cover its liabilities. If there is any surplus in the property of the partnership. if they apply for one. What is the benefit given by the Insolvency Law to partnerships? Partnerships get a discharge from the obligations. But if it’s a partnership. PROOF OF DEBTS Cayo IID 2002 PAGE 96 . If there is any surplus in the property of any general partner after paying his individual debts. What is the effect of a declaration that a corporation is insolvent? The property and assets of the corporation will be distributed to the creditors.Can a partnership be declared insolvent even if the partners constituting the same are solvent? Yes.
the claim of a surety is a contingent claim because the surety can only claim reimbursement from the principal debtor once he himself has paid the obligation. the creditor can still claim from the debtor. The discharge granted the debtor from his existing debts does not cover those debts that could not have been proved in the insolvency proceedings. Which debts cannot be proved at the insolvency proceedings? 1. 4. All debts due and payable at the time of the adjudication of insolvency. 3. Any debt of the insolvent arising from his liability as indorser. Claims of secured creditors unless they waive the right to foreclose or surrender the security.What are the debts which may be proved (collected) against the estate of the insolvent debtor? 1. for the insolvent’s debt as bail. surety. he has no claim for reimbursement against the principal debtor. But the creditor can still collect from the debtor. What happens to obligations of the insolvent debtor that arise after the commencement of the proceedings? These debts cannot be proved in the proceedings. 2. All debts existing at the time of the adjudication of insolvency but not payable until a future time. Any claim for reimbursement of a person who has answered. What is a contingent claim? It is a claim in which the liability depends on a future and uncertain event. since the discharge given to the debtor cannot apply to claims that could not have been proved in the insolvency proceedings. where such liability became absolute after the adjudication of insolvency but before the final dividend shall have been declared. 4. Those barred by prescription. Claims of creditors who hold an attachment or execution on property of the debtor. For example. since there is no real claim yet. But before the surety pays the principal obligation. bail or guarantor. Cayo IID 2002 PAGE 97 . and 5. Other contingent debts and liabilities contracted by the insolvent if the contingency shall happen before the order of final dividend. Claims on account of which a fraudulent preference was made or given. But. 2. in whole or in part. 3. A claim based on a contingency which has not happened at the time of the pendency of the proceedings cannot be proved in the proceedings. if the contingency happens after the termination of the proceedings. surety. provided that this was issued at least 30 days before the institution of the insolvency proceedings. or guarantor or otherwise.
give the one claiming compensation undue preference over other creditors. freeing him from all liabilities proved during the insolvency proceedings. The offer must be accepted in writing by a double majority of the creditors – majority of the number of creditors representing a majority of the claims. If the claim arose within the 30-day period before the filing of the petition. for the sake of getting paid sooner. 2. Is the discharge automatically given to the insolvent debtor? No. The court must approve the terms of the composition. The rule on preferences would be disregarded if the set-off were allowed. there can be no compensation. 3. Silva. What are the requisites? 1. Cayo IID 2002 PAGE 98 . The debtor must ask for it within three months to one year after he is adjudicated insolvent. It would. It must be made after depositing the consideration to be paid and the cost of the proceedings. 4. Support 6. When can composition be set aside? It can be challenged by any party in interest within six months after it has been confirmed on the ground of fraud. COMPOSITIONS What is composition? Composition is an agreement. IX. Damages arising out of a tort Can a creditor set up compensation/offset his own debts against the insolvent debtor? This is the case of Uy-Tong v.5. The offer of the terms of composition must be made after the filing in court of the schedule of property and submission of the list of creditors. between the insolvent or financially embarrassed debtor and all of his creditors whereby the creditors agree to accept a dividend less than the amount of their claims. in effect. DISCHARGE What is discharge? Discharge is the privilege given to the insolvent. Compensation can be set up against the insolvent debtor but only for those debts which arose at least 30 days before the filing of the insolvency proceedings. made upon a sufficient consideration. VIII.
All those set forth in the schedule. or any person liable for the same debt. Claims for support 6. the transaction is made within 30 days before the filing of the petition for insolvency. The creditor must file the petition to revoke it within one year from the date of the discharge. Debts which were not proved and could not have been proved during the insolvency proceedings 7. Cayo IID 2002 PAGE 99 . when may a discharge be revoked? A discharge may be revoked by the court if a creditor can prove that it was fraudulently obtained.Which debts are released by discharge? 1. FRAUDULENT PREFERENCES AND TRANSFERS What is a preferential transfer? It is a parting with the property of the insolvent for the benefit of a creditor with the result that the estate of the insolvent is diminished and other creditors are prejudiced. for or with the insolvent debtor (This is because the discharge only benefits the principal debtor. and 2. 3. 2. Debts of a surety. guarantor. All those which were or might have been proved against the estate in the insolvency proceedings. Once granted. Debts arising from tort 8. Contingent claims When can the petition to get a discharge be denied? The debtor cannot get a discharge if he is in bad faith or does acts to the prejudice of his creditors. X. Debts which were not yet existing at the time of the discharge 10. it is made with a view to giving preference to any creditor. Which debts are not released? 1. Taxes 2. Claims of secured creditors 9. not his co-debtors or guarantors). What is a fraudulent preference? It is a disposition of property by the debtor under the following conditions: 1. 4. indorser. he is insolvent or is in contemplation of insolvency. Debts of a corporation 5. Debts arising from any act of swindling (because you don’t reward a person who violated a law or a trust) 3.
What are the characteristics of the contract of deposit? 1. 1962. Real contract – Deposit is perfected by the delivery of the subject matter 2. Debtor sells a car worth P1M to Buyer for 900K. If the safekeeping of the thing delivered is not the principal purpose of the contract. so the transaction does not really prejudice the creditors. with the obligation of safely keeping it and of returning the same. DEPOSIT CHAPTER 1 DEPOSIT IN GENERAL AND ITS DIFFERENT KINDS Art. the transfer is void. or 2. Another remedy of the creditors is to file a criminal complaint against the insolvent debtor.4. There is a fair exchange of value. except for valuable consideration in good faith. the person receiving a benefit has reason to believe that the debtor is insolvent and that the transfer is made in order to defeat or prejudice the rights of other creditors. it is rescissible for being in fraud of creditors. What is the status of the fraudulent conveyance? If made within 30 days before the filing of insolvency proceedings. What is a fraudulent conveyance/transfer? It is any disposition of property made by the insolvent within one month before the filing of the petition for insolvency. it is made under a confession of judgment. If made after the filing of insolvency proceedings. Is this a fraudulent conveyance? No. Cayo IID 2002 PAGE 100 . What is the contract of deposit? It is the receipt by a person of a thing belonging to another with the obligation of safely keeping it and of returning it. It is essential that the depositary is not the owner of the property deposited. A deposit is constituted from the moment a person receives a thing belonging to another. Within 30 days before the filing of the petition for insolvency. there is no deposit but some other contract. Is there a presumption of fraud? There is a rebuttable presumption that a conveyance is fraudulent when: 1. Unilateral if the deposit is gratuitous – because only the depositary has an obligation. it is not made in the usual and ordinary cause of business of the debtor.
but maybe a contract of service. lease. Deposit distinguished from Simple Loan (mutuum) DEPOSIT PURPOSE WHEN RETURN CAN BE DEMANDED SUBJECT MATTER Safekeeping Depositor can demand return of the thing at will Movable and immovable property (if deposit is judicial) SIMPLE LOAN Consumption Lender must wait until the expiration of the period granted to the debtor Only money and any other fungible thing Deposit distinguished from Commodatum PURPOSE GRATUITOUS? SUBJECT MATTER DEPOSIT Safekeeping May be gratuitous.Bilateral if the deposit is for compensation – gives rise to obligations on the part of both the depositary and the depositor. What is the principal purpose of the contract of deposit? The principal purpose is the safekeeping of the thing delivered. it’s not a deposit. the owner of the car park (the depositary) will shoulder the loss. such as commodatum. it is not a deposit. What is the subject matter in deposit? Only movables can be the subject matter of deposit. but another contract. if the car is lost. The direct result of this is that parking fees will go up because it would have to cover insurance costs in addition to the regular parking fee. only movables COMMODATUM Transfer of use of the subject matter Always gratuitous Both movable and immovable property Cayo IID 2002 PAGE 101 . It’s still not a deposit because the purpose is not safekeeping. so that you have a place to leave your car while you shop or watch a movie or go to school. even if. Is it a contract of deposit? Still. Is it a contract of deposit? No. If you leave a kid a Gymboree or at Kids at Work. And even for practical purposes. no. legally. People who park there just want the space. So. it should not be treated as a deposit. unlike the car park of Powerplant. because the purpose is not safekeeping. the sole reason for the existence of the Dela Rosa car park is for people to leave their cars there. 2. It’s a shortterm lease of space. You park your car at the car park of Powerplant. it is not a deposit. JPSP Examples: 1. If safekeeping is merely an accessory or secondary obligation. The purpose is merely convenience. may be onerous In extra-judicial deposit. If it were a deposit. or agency. You park your car at the Dela Rosa car park.
Deposit is a real contract and requires delivery of the subject matter in order to be perfected. Kinds of Deposit 1.m.Art. whether voluntary or necessary. A: “I will deposit my car in your garage at 8 a. A warehouseman 3. the owner is bound to pay the person who saved his property just compensation Art. 1966. or on the occasion of any calamity. there is a contract. there is no point in entrusting them to someone for safekeeping.” B: “Okay. 1964.” Is there a contract of deposit at this point? No. 1963. GENERAL RULE: Deposit is gratuitous. Art. This applies only to an extra-judicial deposit. or (b) Necessary – made in compliance with a legal obligation. Since real property may not disappear or may not be lost. but the deposit itself is not perfected until the delivery of the thing. and is binding upon the parties. It is a contract of future deposit. Only movable things may be the object of deposit. An agreement to constitute a deposit is binding. Extra-judicial (a) Voluntary – delivery is made by the will of the depositor or by two or more persons each of whom believes himself entitled to the thing deposited. or by travelers with common carriers. Judicial – takes place when an attachment or seizure of property in litigation is ordered 2. Depositary is engaged in business of storing goods – ex. It is perfected by mere consent. Reason: The main purpose of deposit is safekeeping. Contrary stipulation 2. Art. A deposit may be constituted judicially or extrajudicially. tomorrow. Where property is saved from destruction without knowledge of the owner – In this case. Is there a contract at this point? Yes. Cayo IID 2002 PAGE 102 . EXCEPTIONS: 1. A deposit is a gratuitous contract except when there is an agreement to the contrary or unless the depositary is engaged in the business of storing goods. 1965. or by travelers in hotels and inns.
The reason is that the purpose of a judicial deposit is different. but it is not an essential element of deposit. The depositary cannot even require the depositor to prove that he is the owner of the thing. the depositor should be the owner of the thing. EXCEPTIONS: Deposit is necessary in the following cases: (See discussion under necessary deposit) 1. deposit of goods made by travelers or passengers with common carriers CHAPTER 2 VOLUNTARY DEPOSIT Section 1 General Provisions Art. The relationship is an agency. or other similar events. even immovable property can be a valid subject matter. Does the depositor have to be the owner of the thing deposited? Generally. Is this a deposit of the house? No. 1968.A gives the keys to his house to B for safekeeping. It is to protect the rights of the parties to the suit. since the house is an immovable which cannot be the proper subject matter of deposit. the depositor lacks the freedom to choose the depositary. the depositor is free to choose the depositary. if made in compliance with a legal obligation. pillage. When there are several depositors: Cayo IID 2002 PAGE 103 . GENERAL RULE: Deposit is voluntary. What is voluntary deposit? Deposit wherein delivery is made by the will of the depositor. deposit of effects made by travelers in hotels or inns 4. if it takes place on the occasion of any calamity. An extra-judicial deposit is either voluntary or necessary. Art. A deposit may also be made by two or more persons each of whom believes himself entitled to the thing deposited with a third person. 1967. flood. storm. 3. What is the distinction between voluntary and necessary deposit? The main difference is that in voluntary deposit. A voluntary deposit is that wherein the delivery is made by the will of the depositor. 2. In necessary deposit. But if it is a judicial deposit. who shall deliver it in a proper case to the one to whom it belongs. such as fire. shipwreck.
While they are trying to settle the ownership of the dog. he is subject to all the obligations of a depositary whether or not the depositor is capacitated. the depositor may bring an action against him for its recovery. or else. The only thing necessary is delivery of the thing. but it may be annulled for want of capacity of the tinedyers. The hotel should not return to the tinedyers because if subsequently. C can file an action for interpleader to compel A and B to settle the ownership of the dog. Art. If the deposit has been made by a capacitated person with another who is not.If there are two or more persons each claiming the rightful ownership of a thing. and may be compelled to return the thing by the guardian. Art. If a person having capacity to contract accepts a deposit made by one who is incapacitated. or to compel the latter to pay him the amount by which he may be enriched or benefited himself with the thing or its price. It’s actually a voidable contract. The third person assumes the obligation to deliver to the person to whom it belongs. Hence. the tinedyers lose the jewelry. the hotel cannot retain the jewelry. But definitely. Persons who are capacitated cannot allege the incapacity of those with whom they contract. JPSP example: Five tinedyers aged 13 to 15 check into a hotel to go on a drinking binge. the depositor shall only have an action to recover the thing deposited while it is still in the possession of the depositary. They deposit some jewelry at the front desk for safekeeping. Art. If the depositary is capacitated. on the ground that the deposit was not valid because of the incapacity of X? No. A contract of deposit may be entered into orally or in writing. C’s obligation is to eventually deliver the dog to whomever is the rightful owner. 1970. go to the front desk and ask for the return of the jewelry. 1969. if a third person who acquired the thing acted in bad faith. which is valid until annulled. There are no formal requirements for the validity of a contract of deposit. X. or administrator or the person who made the deposit or by the latter himself if he should acquire capacity. However. The tinedyers. at the end of their drinking binge. deposits her basketball with Boy-B. who is insane. pending the resolution of their conflicting claims. the hotel could be made liable for the loss. Ex: A and B both claim to own a dog. What should the hotel do? The hotel should return the jewelry to their legal representative. Is there a valid deposit? Yes. 1971. its personnel would be liable for estafa. they can deposit the dog with C. Cayo IID 2002 PAGE 104 . the former shall be subject to all the obligations of the depositary. they may deposit the thing with a third person. he must return the property to the legal representative of X or to X herself if she should recover sanity. The depositary can file an action for interpleader to compel the depositors to settle their conflicting claims. Can Boy-B refuse to return the basketball later on.
Return of the thing. Can Boy-B recover the watch? If the watch is still in the possession of X. to the depositor or to his heirs and successors.This is the rule that applies if you deposit with a minor or other incapacitated person. Boy-B can recover the watch itself from Hon. His responsibility with regard to the safekeeping and loss of the thing shall be governed by the provisions of Title I of this Book.000.000 from X. when required. The depositary is obliged to keep the thing safely and to return it. Safekeeping 2. Boy-B can recover the watch itself from X. Boy-B cannot recover the watch. or to the person who may have been designated in the contract. If the depositary is incapacitated. He should exercise the diligence of a good father of a family. The depositor can only go after the incapacitated for the value of the thing. while the depositor is capacitated. the depositor cannot recover from him. He can only compel X to return the price that Hon paid for the watch (the benefit that X received from the sale of the watch). If the transferee was in good faith. this fact shall be taken into account in determining the degree of care that the depositary must observe. a buyer in good faith and for value. or (2) to pay the depositor the amount by which he may have benefited through the thing or its price if the incapacitated is no longer in possession If the thing was transferred to a third person who was in bad faith. Boy-B can only recover P5. Section 2 Obligations of the Depositary Art. So if the watch is worth P10. The incapacitated is liable only: (1) to return the thing deposited if it is still in his possession. Boy-B deposits his watch with X. but only when required Duty of Safekeeping What is the degree of care required of the depositary? As a general rule. Primary obligations of the depositary: 1. If X has already sold the watch to Hon. the depositary must exercise the same diligence as he would exercise over his OWN property.000 but X sold it to Hon for P5. who looks like she’s 22 but is actually 13. But if Hon was a buyer in bad faith. If the deposit is gratuitous. the depositor can recover the thing from him. The reasons for this rule are: Cayo IID 2002 PAGE 105 . 1972. the incapacitated does not incur the obligations of a depositary.
even though a specified term or time for such may have been stipulated in the contract and such time has not yet expired. the depositary cannot deposit the thing with a third person. The loss of the thing while it is in the possession of the depositary raises a presumption of fault on his part. 2. the depositor took into account his personal qualifications. if under the circumstances. took into account the diligence which the depositary normally exercises with respect to his own property. he is liable for the loss. a greater degree of care towards the thing deposited is necessary. Unless there is a stipulation to the contrary. If. If the thing is lost through the negligence of the depositary’s employees. Because the contract of deposit involves the depositor’s confidence in the depositary’s good faith and trustworthiness. The depositary is responsible for the negligence of his employees. he is liable to the depositor for the loss. in this case. the thing deposited is lost and the depositary only exercised the same diligence as he would towards his own property. if he deposits it with a person who is manifestly careless or unfit. and it is lost? 1. it is not necessary that the employees be manifestly careless or unfit. GENERAL RULE: The depositary cannot deposit the thing with a third person. If there is no stipulation allowing him to deposit with a third person. Duty of Returning the Thing The thing deposited must be returned to the depositor when he claims it. the depositary must exercise such extraordinary care. and 2. EXCEPTION: The parties may stipulate that the depositary may deposit the thing with a third person. the depositary is liable for the loss (The employee is the agent of the depositary. Generally. and the thing is lost through fortuitous event. What happens if the depositary deposits the thing with a third person. but it is necessary that the loss be through negligence. the depositary is not liable for the loss. principal bears the loss resulting from the negligence of his agent). 1973. the depositary is liable for the loss if he deposited the thing with a person who is manifestly careless or unfit. But there is a limitation – the depositary cannot choose a third person who is manifestly careless or unfit. if the thing is deposited with a third person with permission of the depositor. in choosing the depositary. Art. even if there is no negligence or even if the loss was through fortuitous event. BUT. Here. Reason for the rule: Deposit is founded on trust and confidence. If deposit with a third person is allowed. However. whether it was through his or the third person’s fault or through fortuitous event. Because it is presumed that the depositor. the depositary is liable for the loss. It is presumed that in choosing the depositary. 3. Cayo IID 2002 PAGE 106 .1.
A sued B for damages for depositing the jewelry with a third person without A’s authorization. Art. a special power of attorney. to enable the depositary to collect the interest and capital when due. before the depositary may make such change. or else these parties would be discharged. Notice to the depositor of the change is sufficient. What are the obligations of the depositary if the thing earns interest? 1. the depositary should first notify and wait for the decision of the depositor. Collect the interest. as well as the capital. bonds. However. The instrument is an order instrument. and to take such steps as may be necessary in order that the securities may preserve their value and the rights corresponding to them according to law. JPSP example: A deposited jewelry with B. Take such steps as may be necessary to preserve its value and the rights corresponding to it. What is B’s defense? B can invoke Article 1974. the depositary need not wait for the consent of the depositor. 1975. and 2. Under the circumstances. B can infer that A would consent to the change of the manner of deposit. he shall notify the depositor thereof and wait for his decision. 1974. as it becomes due. GENERAL RULE: The depositary should not change the way or manner of the deposit as agreed upon. a resident of Lamitan. B cannot collect the interest due on it because he is neither an indorsee nor an authorized agent of A. EXCEPTION: The depositary may change it if there are circumstances indicating that the depositor would consent to the change. Can B collect accrued interests on the note? No. If delay would cause danger. there is a need for an indorsement or at least. Art. Ex: Depositary of a negotiable instrument should give notice of dishonor to all parties secondarily liable. Therefore. so he deposited the jewelry with a bank in Davao. 1975 really applies only to BEARER instruments. B did not feel so secure with the jewelry in Lamitan.Art. JPSP example: A deposits to B a promissory note payable to A or order. The depositary holding certificates. Cayo IID 2002 PAGE 107 . However. unless delay would cause danger. The depositary may change the way of the deposit if under the circumstances he may reasonable presume that the depositor would consent to the change if he knew of the facts of the situation. If it is an order instrument. The above provision shall not apply to contracts for the rent of safety deposit boxes. securities or instruments which earn interest shall be bound to collect the latter when it becomes due.
Art. the depositary must keep them separate or at least identifiable. Can A put all of the rice together? Yes. the Bank may limit its liability to some extent by agreement or stipulation. C will own 20/60 or 1/3. Art. since there is no stipulation forbidding it. The liability rules are governed by the Civil Code provisions on obligations and contracts. It is actually a special kind of deposit. Cayo IID 2002 PAGE 108 . Any contrary stipulation would be void. EXCEPTION: If there is a contrary stipulation De Leon example: A. The law on deposit provides that the depositary is liable for loss due to fraud. B will own 30/60 or ½ of the whole pile. depositary. in which case the various depositors shall own or have a proportionate interest in the mass.Safety Deposit Boxes The contract for rent of safety deposit boxes is not an ordinary contract of lease of things because the full and absolute possession and control of the safety deposit box is not given to the party renting. received the following: from B: 30 cavans of rice from C: 20 cavans of rice from D: 10 cavans of rice The rice was of the same kind and quality. and not on donations. the agreement or stipulation must not be contrary to law and public policy. or contravention of the tenor of the agreement. It is a contractual relation between the parties. 1977. Is a stipulation which exempts the bank from liability for the things contained in the safety deposit box valid? The stipulation is void. the depositary may commingle grain or other articles of the same kind and quality. negligence. Unless there is a stipulation to the contrary. delay. Even if as a rule. GENERAL RULE: The depositary may commingle grain or other articles of the same kind and quality. or if there is a stipulation forbidding it. and D will own 10/60 or 1/6. 1976. since he must return to each depositor the very same thing deposited. The depositary cannot make use of the thing deposited without the express permission of the depositor. But if the articles deposited by different depositors are not of the same kind and quality.
and it is not presumed. If the purpose is use. EXCEPTIONS: 1. The depositary is liable for the loss of the thing through a fortuitous event: (1) If it is so stipulated. the contract loses the concept of a deposit and becomes a loan or commodatum. except where safekeeping is still the principal purpose of the contract. However. When the depositary has permission to use the thing deposited. Ex: When you deposit a car with someone for a week. in order to prevent the battery from getting discharged. It becomes simple loan or mutuum if the thing deposited is money or other consumable thing. 2. In addition. 1978. Reason for the rule: The principal purpose of deposit is safekeeping. if the thing deposited is money or other consumable thing and the principal purpose is still safekeeping. 2. it is an irregular deposit. However. not use of the thing.Otherwise. What happens if the depositor gives the depositary permission to use the thing? It depends. the depositary shall bear the loss. If the depositary uses the thing deposited without permission of the depositor. If the purpose has become use or consumption of the thing: 1. it must be used but only for that purpose. he shall be liable for damages. and its existence must be proved. Permission cannot be implied. Bank deposits are in the nature of an irregular deposit but they are really loans (See Article 1980). the depositary should start the car everyday. when the preservation of the things deposited requires its use. If the principal purpose is still safekeeping. Art. if the thing is lost even through fortuitous event. it is not deposit anymore. The permission shall not be presumed. When the depositor has expressly given his permission. it may be used but only for that purpose. he shall be liable for damages. When the preservation of the thing requires its use. Cayo IID 2002 PAGE 109 . It becomes commodatum if the thing deposited is non-consumable. 1979. it retains its character as deposit. Art. GENERAL RULE: The depositary CANNOT make use of the thing deposited.
Delay in return – this is default 4. even though he himself may have been authorized to use the same. not deposits. Since there is no breach of trust. Relationship is Debtor-Creditor The relationship between the bank and its depositors is thus that of debtor (bank) and creditor (depositor). but not the exact same money that was deposited (as in deposit). If the thing is lost in the custody of the depositary. Since they are loans. If he allows others to use it – also a breach Take note that the rule is different in commodatum. EXCEPTIONS: 1. Art. He has the burden of proving that the loss was not due to his own fault. (4) If he allows others to use it. GENERAL RULE: The depositary is not liable for loss of the thing through fortuitous event. they are governed by the provisions concerning mutuum or simple loan. it is not a breach of trust arising from the depositary’s failure to return the subject matter of the deposit. If he uses it without the depositor’s permission – this is breach/ contravention of the tenor of the obligation 3. Fixed. 1980.(2) If he uses the thing without the depositor’s permission. Hence: 1. it will not constitute estafa through misappropriation. and current deposits of money in banks and similar institutions shall be governed by the provisions concerning simple loan. (3) If he delays its return. In commodatum. Nature of Bank Deposits Bank deposits are really loans to a bank because the bank has the obligation to pay the depositor the amount deposited. If the bank fails to pay its obligation to the depositor. savings. the presumption is that it was lost through his fault. Stipulation 2. Cayo IID 2002 PAGE 110 . the members of the borrower’s household are allowed to use the thing without liability on the part of the borrower.
When the seal or lock is broken. the statement of the depositor shall be accepted. compensation is not allowed. if the key has been delivered to him. a dead body. the courts may pass upon the credibility of the depositor with respect to the value claimed by him. or when the instructions of the depositor as regards the deposit cannot be executed without opening the box or receptacle. unless there is proof to the contrary. since the parties will always get into a dispute over the value of the thing (i. I think that if he keeps these things a secret. Art. with or without the depositary’s fault. the depositary is presumed authorized to do so. and he shall be liable for damages should the seal or lock be broken through his fault. Besides. he can even be liable as an accessory to the crime for helping conceal it. When may B open the baul? Cayo IID 2002 PAGE 111 . However.) 3. Art. etc. When the thing deposited is delivered closed and sealed. 2. He may still be held liable for the breach of his obligation as depositary but at least he knows that he has done a greater good to society by reporting the dastardly deed to the authorities. As regards the value of the thing deposited. he shall be liable to A for damages. B must return the baul in the same condition – it must be locked when returned. B must keep the secret of the deposit. What are B’s obligations? 1. How is the value of the thing determined in case the baul is opened? Ultimately. 1981. B is presumed negligent until proved otherwise. 1982. the court will decide the value of damages that B should pay. A delivers a locked baul to B for safekeeping. If the lock of the baul is broken through B’s fault. If the contents of the baul turn out to be illegal – shabu. A bank can generally compensate or set off the deposit in its hands for the payment of any indebtedness to it on the part of the depositor. If the lock of the baul is broken. The court just might exonerate him of liability for the breach because of his fulfillment of a civic duty. provided that the legal requisites of compensation are present. when the forcible opening is imputable to the depositary. When it becomes necessary to open a locked box or receptacle. the depositary must return it in the same condition.2. a bloody bolo – the depositary should immediately call the cops. In a true deposit. A would inflate the price. Fault on the part of the depositary is presumed. B would undervalue it. with or without B’s fault. he shall keep the secret of the deposit.e. should there be no proof to the contrary.
Can he open it without liability? Tuks cannot. He should just hope and pray that it’s just a watch in there. Nevertheless. the provisions relative to agents in article 1896 shall be applied to the depositary. should he discover that the thing has been stolen and who its true owner is. does not claim it within the period of one month. Should the deposit consist of money. The obligation of the depositary is to return the thing when the depositor demands. Shak leaves right away without giving Tuks an opportunity to ask him why there is a ticking sound coming from inside the box. The depositor is entitled to the products. The thing deposited shall be returned with all its products. Art. When a third person appears to be the owner of the thing: 1. These two instances are not present in the situation of Tuks. and accessions. This is because it is not essential that the depositor be the owner of the thing deposited. accessories. The depositary cannot demand that the depositor prove his ownership of the thing deposited. If the depositary finds out that the thing was stolen AND he knows the real owner. or 2. When there is presumed authority – authority is presumed if the key has been delivered to him. When there is necessity for opening the box in order to execute the instructions of the depositor as regards the deposit JPSP example: Shakadivas delivers a locked box to Tuks for deposit. he must advise the latter of the deposit. in spite of such information. The depositary cannot demand that the depositor prove his ownership of the thing deposited. Art. his obligation is to INFORM the real owner of the deposit (it is not to return the thing to the real owner yet). and accessions of the thing because he is the owner of the thing. Tuks is afraid that it might be a bomb. accessories. Cayo IID 2002 PAGE 112 . the former may return the same. along with all its products. The only instances when a depositary can open the box without incurring liability is if there is presumed authority or if there is necessity for opening it in order to execute the instructions of the depositor. If the depositary has reasonable grounds to believe that the thing has not been lawfully acquired by the depositor. 1983. If the owner. 1984.1. and accessions. accessories. the depositary shall be relieved of all responsibility by returning the thing deposited to the depositor.
If the depositor should subsequently lose capacity. the depositary should give it to the real owner. if there is a stipulation that the thing should be returned to one of the depositors. Art. the depositary can only return to the depositor stipulated. The parties may also stipulate that the thing be returned to a specific depositor. delivery should be made to him who made the demand. if the depositary discovers that the thing was stolen and someone else is claiming to be the real owner. the depositary’s obligation will be extinguished by returning the thing to the depositor. The thing deposited must be returned only to a person who is capacitated. each one cannot demand more than his share. If the real owner fails to make a claim within a month. (See discussion under Article 1970 on deposit by tinedyers) Cayo IID 2002 PAGE 113 . since in this case. the depositary will be liable for giving the thing to someone else or for refusing to return it to the depositor (estafa). This rule applies if the thing is divisible and there is no solidarity among the depositors. When there is solidarity or the thing does not admit of division. the real owner is not known). the rule on solidary obligations is applicable. in which case. and the thing admits of division. the depositor shall return it only to the person designated. But according to JPSP. However. the provisions of Articles 1212 and 1214 shall govern. If the depositary has reasonable grounds to believe that the thing has not been lawfully acquired by the depositor. When there are two or more depositors. the default rule is like that in joint obligations – each depositor cannot demand more than his share from the depositary. Each one of the depositors may do whatever may be useful to the others but not anything which may be prejudicial. the more prudent thing to do would be to file an action for interpleader and consign the thing in court. It is not safe to follow 1984 because if the claim of the alleged real owner turns out to be false. the thing cannot be returned except to the persons who may have the administration of his property and rights. 2. even if he does not make a demand. the depositary may return the thing to the depositor (not to the real owner. 1985. Art.The real owner must claim the thing within one month. 1986. The depositary can return the thing deposited to any of the depositors unless a demand for its return has been made by one of them. If the depositor should lose his capacity to contract after having made the deposit. In this case. If there is solidarity or if the thing is indivisible. the depositary should return it to his representative. If he claims it within a month. When there are two or more depositors. if they are not solidary.
1988. 1987. If no place has been designated for the return. follow the stipulation of the parties. not wanting to return the thing anymore. but the expenses for transportation shall be borne by the depositor. If the deposit is for compensation. For example. moves it to the Cordillera mountains. Where to return the thing deposited: 1. follow 1987 – the thing should be returned at the place where the thing deposited may be. as discussed earlier. In these cases. even Cayo IID 2002 PAGE 114 . However. GENERAL RULE: The depositary must return the thing upon demand by the depositor even if the period for the deposit has not lapsed. there must be no malice on the part of the depositary. there is no court order). EXCEPTION TO THE GENERAL RULE: The depositary should not return the thing to the depositor if there is a court order enjoining him from returning the thing to the depositor (when there is attachment). the depositary must take the thing deposited to such place. However. 1989. even if it was not the same place where the deposit was constituted. The expenses for transportation shall be borne by the depositor since the deposit was constituted for his benefit. it shall be made where the thing deposited may be. the depositor must still pay the depositary the full compensation agreed upon. The thing deposited must be returned to the depositor upon demand even though a specified period of time for such return may have been fixed. Unless the deposit if for a valuable consideration. First. even if it should not be the same place where the deposit was made. so that the depositor would have a hard time claiming it. Art. the depositary who may have justifiable reasons for not keeping the thing deposited may. If at the time the deposit was made a place was designated for the return of the thing. If there is no stipulation. the depositary. provided that there was no malice on the part of the depositary. and the depositor demands the return of the thing before the period for deposit has lapsed. 2. the more prudent thing to do in this case is not to refuse to return the thing to the depositor but to file an action for interpleader because there is a danger that the depositary would be liable for damages if the claim of the third person turns out to be false. the depositary would be liable for damages. In this case. This provision shall not apply when the thing is judicially attached while in the depositary’s possession or should he have been notified of the opposition of a third person to the return or the removal of the thing deposited. This is because the period in this case is for the benefit of both the depositary and the depositor. Art.Art. The law says that the depositary can also refuse to return the thing if there is an opposition to its return by a third person (here. the depositary must immediately inform the depositor of the attachment or opposition.
before the time designated, return it to the depositor; and if the latter should refuse to receive it, the depositary may secure its consignation from the court. As a general rule, the depositary should wait for either the period of the deposit to lapse or for the depositor to demand the return of the thing before he can return the thing deposited. But, if the following requisites are present, he may return the thing to the depositor even before the period of the deposit has lapsed or before it is demanded: 1. The deposit must be gratuitous; and 2. There must be a justifiable reason. If the depositary refuses to accept, the depositor can consign the thing in court. But if the deposit is for compensation, the depositary cannot return the thing until the expiration of the period or until it is demanded by the depositor. Art. 1990. If the depositary by force majeure or government order loses the thing and receives money or another thing in its place, he shall deliver the sum or the thing to the depositor. The depositary is not liable for the loss of the thing either by force majeure or government order. But, if in place of the thing lost, the depositary receives money or another thing, he must deliver it to the depositor. Ex: If the thing is expropriated by the government, the indemnity paid by the government must be turned over by the depositary to the depositor. Art. 1991. The depositor’s heir who in good faith may have sold the thing which he did not know was deposited, shall only be bound to return the price he may have received or to assign his right of action against the buyer in case the price has not been paid him. First, take note that there seems to be a typo in this provision: it should read “The depositary’s heir…” if it is to make any sense. This contemplates the following situation: A deposits a car with B. While the car is still in B’s custody, B dies. C, B’s son, finds the car among his dad’s stuff and thinks that the car belonged to his dad. C sells the car to D. What are the liabilities of C? If D has already paid C, C must return to A the price that D paid for the car (not the value of the car). If D has not yet paid, C may assign to A his right to collect from D the selling price of the car.
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Take note that A has no right to recover the car itself. Also, there must be good faith on the part of the heir and the third party buyer. If there was bad faith, the depositor can recover the car itself. Moreover, the heir will be liable for estafa.
Section 3 Obligations of the Depositor
Art. 1992. If the deposit is gratuitous, the depositor is obliged to reimburse the depositary for the expenses he may have incurred for the preservation of the thing deposited. If the deposit is gratuitous, the depositor should shoulder the costs of preservation because he is the owner of the thing. If the deposit is for compensation, the depositary should shoulder the costs of preservation of the thing because the compensation is deemed to include the costs of preservation. Example: A deposits a dog with B for 30 days for a compensation of P500. B buys a sack of dog food. By the 10th day, the dog food has run out. Can B ask for more money from A? A can refuse to give more money and argue that in charging the compensation for the deposit, B should have factored in the expected expenses of preserving the dog. But it still depends on the intention of the parties. Art. 1993. The depositor shall reimburse the depositary for any loss arising from the character of the thing deposited, unless at the time of the constitution of the deposit, the former was not aware of, or was not expected to know the dangerous character of the thing, or unless he notified the depositary of the same, or the latter was aware of it without advice from the depositor. GENERAL RULE: The depositor should compensate the depositary for any loss that the depositary may suffer from the character of the thing deposited. Example: A deposits a dog with B. It turns out that the dog has rabies. The dog bites B, and as a result, B has to get anti-rabies shots. A must pay for the damage caused and the cost of B’s shots. EXCEPTIONS: In the following cases, the depositor need not reimburse the depositary for any loss arising from the character of the thing deposited: 1. If at the time of the deposit, the depositor was not aware of the dangerous character of the thing; 2. If at the time of the deposit, the depositor was not expected to know the dangerous character of the thing; 3. If the depositor notified the depositary of the dangerous character of the thing; or 4. If the depositary was aware of the dangerous character of the thing even without the advice of the depositor.
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Art. 1994. The depositary may retain the thing in pledge until full payment of what may be due him by reason of the deposit. This is an example of a pledge created by operation of law. The depositary may keep the thing deposited as a security for anything that the depositor may owe him, but it has to be by reason of the deposit. Compare this rule with the rule in commodatum, in which the borrower may generally not retain the thing as a security for anything that the lender may owe him (remember the frisbee example?). Art. 1995. A deposit is extinguished: (1) Upon the loss or destruction of the thing deposited; (2) In case of a gratuitous deposit, upon the death of either the depositor or the depositary. Causes for extinguishment of deposit: 1. loss or destruction of the thing deposited 2. In case of gratuitous deposit, upon the death of either the depositor or the depositary But if the deposit is for compensation, it is not extinguished by the death of either party since it is not personal in nature. Hence, the rights and obligations of the parties are transmissible to their heirs. 3. 4. 5. 6. 7. return of the thing novation merger expiration of the term fulfillment of resolutory condition
CHAPTER 3 NECESSARY DEPOSIT
Art. 1996. A deposit is necessary: (1) When it is made in compliance with a legal obligation; (2) When it takes place on the occasion of any calamity, such as fire, storm, flood, pillage, shipwreck, or other similar events. Art. 1997. The deposit referred to in No. 1 of the preceding article shall be governed by the provisions of the law establishing it, and in case of its deficiency, by the rules on ordinary deposit. The deposit mentioned in No. 2 of the preceding article shall be regulated by the provisions concerning voluntary deposit and by article 2168. Art. 1998. The deposit of effects made by travelers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to them, or to their
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is governed by the provisions on voluntary deposit. when the creditor uses the thing pledged without the authority of the owner or misuses it in any other way. 2. flood.employees. 2168. 2. this kind of necessary deposit is. 2168 on quasicontracts. 4. being a deposit. the owner may ask that it be judicially or extrajudicially deposited. 3. The hotel-keeper is liable for the vehicles. Cayo IID 2002 PAGE 118 . The hotel or inn should have been previously informed about the effects brought by the guests. 1999. X goes inside and gets Y’s TV for the purpose of saving it. The relationship of X and Y. So unlike a voluntary deposit. on the part of the latter. property is saved from destruction by another person without the knowledge of the owner. and b. When during a fire. 2168 says that the owner of the thing should pay the depositary just compensation for his expenses in preserving the thing. by express provision of law. Deposit of effects made by travelers in hotels or inns Requisites before the hotel or inn may be held responsible as depositary: a. What are the instances when deposit is NECESSARY? There are FOUR instances/ examples of necessary deposit: 1. they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects. The guests have taken the precautions prescribed regarding their safekeeping. it is also governed by Art. of the effects brought by the guests and that. Deposit Deposit Deposit Deposit made in compliance with a legal obligation that takes place on the occasion of any calamity of effects made by travelers in hotels or inns of goods with common carriers 1. But in addition. Art. story. The liability extends not just to effects inside the rooms but also to property of the guests in the annexes. which is by default gratuitous. or other calamity. Deposit made in compliance with a legal obligation Example: In pledge. 3. Deposit that takes place on the occasion of any calamity Example: A fire razes Y’s house. animals and articles which have been introduced or placed in the annexes of the hotel. X becomes the depositary of the TV. Art. Art. for compensation. the latter is bound to pay the former just compensation. such as cars in the garage.
Example: You go to Edsa Shangri-La to eat at the Garden Café. you must at least use the principal services of the hotel – the gym. or injury to the personal property of the guests caused by the servants or employees of the keepers of hotels or inns as well as by strangers. you just used the Edsa Shangri-La valet service – are you still a guest? No. who has entered the hotel is not deemed force majeure. Deposit of goods with common carriers This is governed by Articles 1733. You turn your car over to the valet. But do you need to give an itemized listing of your valuables every time you go into a hotel? No. but not that which may proceed from any force majeure. meeting place at the lobby. but since you didn’t want to go through the trouble of looking for parking in Megamall. The hotel-keeper is not liable for compensation if the loss is due to the acts of the guests. or if the loss arises from the character of the things brought into the hotel. you’re considered a guest. the pool. 4. Is there a contract of deposit? Yes. 2002. etc. servants or visitors. Art. Art. When is the hotel liable for the loss of the effects of its guests? Cayo IID 2002 PAGE 119 . unless due to fortuitous event or the fault of the owner of the goods. The act of a thief or robber. Common carriers are generally responsible for the loss. Art. you should: (a) give notice to the hotel of the effects you have brought into the hotel and (b) take the precautions prescribed for their safekeeping. The responsibility referred to in the two preceding articles shall include the loss of. 2001. If you’re the guest. It is sufficient that you bring in your personal effects and the hotel personnel see them. Constructive notice to the employees of the hotel is enough. You don’t have to actually get a room in order to be considered a guest for purposes of constituting the contract of deposit with the hotel. What if you wanted to shop in Megamall. Valet parking is not a principal service of the hotel. destruction. and deterioration of the goods. unless it is done with the use of arms or through an irresistible force. The fact that travelers are constrained to rely on the vigilance of the keeper of the hotels or inn shall be considered in determining the degree of care required of him. his family. Although you need not check-in in order to be considered a guest. As long as you use the main facilities of the hotel. 1734. 2000. 1735 of the Civil Code under Lease.
And as we all know. This waiver is valid because. the hotel is excused from liability because it is considered a fortuitous event. In the case of carparks. morals. Any stipulation between the hotel-keeper and the guest whereby the responsibility of the former as set forth in Articles 1998 to 2001 is suppressed or diminished shall be void. it will still be liable for its negligence. However. The hotel-keeper has a right to retain the things brought into the hotel by the guest. and public policy. or a snake. if the hotel failed to take reasonable precautions (ex: secluded island with only one security guard stationed near the shore and lots of foreigners checked in). provided the guest followed the two requisites under Art. as a security for credits on account of lodging.1. When the loss is due to the acts of the guest (who is the owner of the thing). Reason: You cannot waive the liability of one who is guilty of gross negligence. Art. However. and 3. or visitors. 2003. When is the hotel NOT liable? 1. Even if the hotel-keeper posts signs or puts these little fine-print stipulations that it is not liable for any loss. they could easily get lost in the premises. by the very nature of these pets. Art. the contract with the carpark is not a deposit but only a short-term lease. his family. It is contrary to law. When the loss is caused by the employees of the hotel or by strangers. Cayo IID 2002 PAGE 120 . UNLESS the hotel-keeper is guilty of fault or negligence in failing to provide against the loss or injury from this cause. or Cyrus’ pet hamster into the hotel. fire. 2. When the loss or injury is caused by force majeure. as discussed already. and supplies usually furnished to hotel guests. 2004. The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the guest. When the loss arises from the character of the things brought into the hotel Example of thing where the loss arises from the character of the thing: If you bring a Dalmatian. the fine print on the tickets always contains a waiver of liability by the owner of the carpark for any loss within its premises. like flood. theft or robbery by a stranger with the use of arms or irresistible force. So as a general rule. this only applies to a contract of deposit. a waiver of future fraud is void. it cannot escape its liabilities as a depositary under Articles 1998 to 2001. servants. When the loss is caused by the act of a thief or a robber done without the use of arms and irresistible force. if armed men enter the hotel and steal your things. 2. 1998 (notice and precaution). Gross negligence is equivalent to fraud or bad faith.
Movable as well as immovable property may be object of sequestration. with respect to the same. the purpose of judicial deposit is to maintain the status quo during the pendency of the litigation to insure the right of the parties to the property in case of a favorable judgment. How do you deposit an immovable? You annotate the attachment on the title with the Register of Deeds.This is another pledge created by operation of law. 2005. A judicial deposit or sequestration takes place when an attachment or seizure of property in litigation is ordered. The depositary of property sequestrated is bound to comply. where the purpose is safekeeping. Examples: 1. garnishment of money 3. the hotel can keep your stuff as a security. Art. The depositary of property or objects sequestrated cannot be relieved of his responsibility until the controversy which gave rise thereto has come to an end. 2008. What is judicial deposit? Judicial deposit is a deposit pursuant to a court order – when an attachment or seizure of property in litigation is ordered by a court. a judicial deposit can cover both movable and immovable property. with all the obligations of a good father of a family. What may be the object of judicial deposit? Unlike extra-judicial deposit. receiver may be appointed by the court to administer and preserve the property in litigation 4. This means that in case of favorable judgment. CHAPTER 4 SEQUESTRATION OR JUDICIAL DEPOSIT Art. Moreover. Art. personal property may be seized by the sheriff in suits of replevin What is the purpose of judicial deposit? Unlike extra-judicial deposit. If you do not pay your hotel bills. you will be liable for estafa. the party will be assured that there will be property to satisfy the execution of the judgment. unless the court so orders. attachment of properties by sheriff upon the filing of a complaint 2. 2007. where the object must be a movable. What are the obligations of the depositary of sequestrated property? Cayo IID 2002 PAGE 121 . 2006. Art.
according to JPSP. Sorry. has a right EXTRA-JUDICIAL DEPOSIT By will of the parties. 2009. by the judgment. therefore it is onerous In behalf of the person who. As to matters not provided for in this Code. Good luck! May the power of greyskull be with us all ☺ Cayo IID 2002 PAGE 122 .The person appointed by the court as depositary has the obligation to take care of the thing with the diligence of a good father of a family. That’s all folks. DISTINCTIONS BETWEEN JUDICIAL AND EXTRA-JUDICIAL DEPOSIT CAUSE OR ORIGIN PURPOSE SUBJECT MATTER REMUNERATION IN WHOSE BEHALF IT IS HELD JUDICIAL DEPOSIT By will of the court To secure the right of a party to recover in case of favorable judgment Movable or immovable property The depositary is always compensated. judicial sequestration shall be governed by the Rules of Court. I didn’t include Warehouse Receipts Law anymore because it’s probably going to be just 5% of the exam. it is gratuitous. hence there is a contract Safekeeping Only movable property As a rule. He may not be relieved of his responsibility until the litigation is ended or until the court so orders. though the parties may stipulate otherwise In behalf of the depositor or the third person designated Art.